NEDDERMAN et al.
CITY OF DES MOINES et al. (BECK, Intervener).
Appeal from District Court, Polk County; O. S. Franklin, Judge.
Action in equity to enjoin defendants from interfering with plaintiffs in the construction of a store building on certain lots in city of Des Moines, and for decree establishing validity of a building permit issued therefor. Fremont L. Beck intervened praying that the tax deed, constituting plaintiffs' title, be set aside and canceled. From judgment and decree for plaintiffs, defendants and intervener have appealed.
ALBERT and ANDERSON, JJ., dissenting.
Van Liew, Weaver, Ralls, McNutt & Ash, of Des Moines, for appellants.
McMartin, Herrick & Langdon, of Des Moines, for appellees.
Emmert, James & Lindgren, of Des Moines, for intervener.
Leaving the intervener's petition for discussion in a later portion of this opinion, we first proceed to a consideration of the issues as between plaintiffs and defendants, by all of whom the following facts are conceded: That plaintiffs are the holders of a valid tax deed to the city lots involved, dated April 1, 1935, issued pursuant to a county treasurer's tax sale for general taxes; that at the time of all transactions involved in this case said lots have been within a locality zoned for commercial or business purposes by the zoning ordinances of said city; that said lots are a part of a subdivision designated as Fair Acres, within the city of Des Moines, the subdivision containing 64 lots; that the person platting the subdivision has conveyed nearly all of the lots, including the two to which plaintiffs claim title under tax deed; that each deed of conveyance by the proprietor of the subdivision contained restrictive provisions, one being that no business or store building shall be placed or constructed on the premises prior to the year 1950; that on June 4, 1935, the defendant city issued to plaintiffs a written permit to erect a one-story frame building
upon one of the lots in question to be used as a retail store; that afterwards a written notice, bearing date June 11, 1935, was given to plaintiffs by defendant city informing plaintiffs that by roll call No. 950, passed June 10, 1935, by the city council of defendant city, the building department had been ordered and directed to revoke the building permit issued June 4, and notifying plaintiffs that the permit was revoked and that plaintiffs were to immediately cease all building operations.
On July 10, 1935, plaintiffs brought this equity action now before us, the petition containing the foregoing matters, and praying that the building permit above mentioned be decreed to be valid and binding upon defendants; that plaintiffs be authorized to proceed thereunder with the construction of the building; that the resolution of the defendant city of June 10, 1935, be decreed null and of no force and effect; that defendants be enjoined from interference with the construction of said building in accordance with said permit; and that plaintiffs have general equitable relief. For answer defendants set out a provision in the above-mentioned zoning ordinance which recites: " It is not intended by this ordinance to interfere with or abrogate or annul any easements, covenants or other agreements between parties." The answer further alleged that the building permit which had been issued to plaintiffs would abrogate the covenants and agreements of private parties and the owners of said land; particularly the provision in the various conveyances made by the proprietor of the subdivision that " no business or store building shall be placed or constructed on said lot." Plaintiffs replied denying that said building permit abrogates the covenants and agreements of private parties or the owners of said land, and in support of such denial say that by virtue of their tax deed they have an absolute title unaffected by any restrictive covenants contained in the chain of title of any previous owner. Thus the issues are narrowed down to a point where plaintiffs and defendants both concede in argument that the question on this appeal is, Does a tax deed in Iowa operate to cut off a restrictive covenant such as a building restriction imposed by deed in the previous chain of title?
In Crum v. Cotting, 22 Iowa 411, in a general discussion of the character of title conveyed by a tax deed, reference is made to a statement in the text in Blackwell on Tax Titles, wherein the author expresses the view that when a tax is made a charge upon the land alone, and no resort is contemplated against the owner or his personal estate, or where the proceeding is strictly in rem, the tax deed will have the effect to destroy all prior interests in the state and vest the purchaser with a new and independent title. Following an extended discussion, the opinion concludes that, by a fair construction of Iowa statutes as a whole, it is intended by them to vest the purchaser with a complete and perfect title to the land, and not with the right and interest only of the former owner, in whose name it was listed, and that there can be no well-founded doubt that our revenue law belongs to the class referred to by Blackwell as above set out, to wit, that class in which the tax deed has the effect to destroy all prior interests in the estate, and vest the purchaser with a new and independent title, freed from all liens and encumbrances, except so far as especially provided in relation to the school and university funds. While the writer of that opinion states that it was perhaps not necessary in that case to determine the character of the title acquired through a tax deed, nevertheless the opinion has been adopted and followed in the subsequent opinions of this court. In Lucas v. Purdy, 142 Iowa 359, 120 N.W. 1063, 1064, 24 L. R.A.(N.S.) 1294, 19 Ann.Cas. 974, it is said: " All property is held subject to the payment of taxes which are imposed as an incident of sovereignty. City of Davenport v. Ry. Co., 38 Iowa 633; Cooley, Const.Lim., 479. * * * In providing that ‘ the right, title, interest and claim of the state and county’ should pass under the deed, the design evidently was to effect a complete transfer of the fee. This was a necessary consequence of the foreclosure of a lien existing against all persons and the logical construction of these statutes. Such is the purport of the decisions of this court declaring that the tax title is not derivative but original, is not limited to passing the title of him in whose name the land is taxed, but divests all interests in the land and vests in the grantee an independent and paramount title. * * * In Willcuts v. Rollins, 85 Iowa 247, 52 N.W. 199, the court observed that: ‘ A tax title is not derivative. If valid, it is a breaking up of all other titles and is antagonistic to all other claims to the land.’ * * * In Crum v. Cotting, 22 Iowa 411, the subject
is somewhat exhaustively considered, and it was said that the tax deed ‘ operates to destroy all prior interest and vests the purchaser with a new and independent title." ’ In Iowa Securities Co. v. Barrett,210 Iowa 53, 230 N.W. 528, the question was again carefully considered and the same conclusion reached. In that case it was held that a tax sale and deed for general or ...