upon the property. But Eldridge had no interest whatever in the property at the time the plaintiff commenced his action upon his lien. McCall, by her conveyance from Stephenson, assignee, was the owner of the equity of redemption. The judgment and decree were of no validity as against the owner of the equity of redemption, because she was not a party thereto. The whole proceeding was no more in effect than a simple judgment against Eldridge for the amount due to the plaintiff. We think something more than this is contemplated by the statute before the holder of a mechanic's lien is entitled to redeem under the statute. There must be a judgment which establishes the lien against the specific property. This cannot be made effectual without making the proper parties. As the defendant was the only party in interest, and Eldridge had no ownership whatever in the property, no lien could be established thereon without making the defendant a party. It is provided by section 2510 of the Code that the action for mechanic's lien shall be prosecuted by equitable proceedings. By section 3103, to entitle the lien-holder to redeem, there must be a "judgment thereon"-that is, upon the mechanic's lien; not a mere money judgment for work, labor, or materials, but a judgment applying the lien to its subject, ascertaining and determining the property upon which it shall be operative. This it is declared shall be prosecuted by equitable proceedings. If a judgment for a mere money demand were sufficient to authorize a statutory redemption, it might well be inquired, why require that the proceedings shall be in equity? The plaintiff is not entitled to redeem upon equitable considerations. The case is not within the rule of Jones v. Hartsock, 42 Iowa, 147, where it is held that the right of the holder of a junior mechanic's lien cannot be prejudiced by a foreclosure to which he was not a party; but that he could afterwards maintain a suit in equity to redeem. In the case at bar the plaintiff was made a party, defendant to the foreclosure of defendant's mortgage. He should then have asserted his right to a lien, or in his subsequent action against Eldridge he should have made the holder of the equity of redemption a party, to the end that he might have had judgment, not only against Eldridge, but against the property, upon his mechanic's lien. It follows that the decree must be reversed upon defendant's appeal. Reversed. HALL & SPENCER, Appellants, vs. A. L. GUTHRIDGE, Appellee. Filed December 4, 1879. Failure to redeem in this case held not to have been caused by any fraud or misrepresentation of defendant. The notice to be served under the provisons of section 894 of the Code, by the holder of a tax certificate, is to be served on the owner, need not be served on mortgagees or one who formerly was owner, and service may be made by holder of the certificate. In the absence of anything to the contrary, the owner is presumed to be in possession.-[Ed. Appeal from Union district court. This is an action to redeem certain real estate from a sale for taxes. The property was sold by the treasurer of the county to the defendant for the delinquent taxes for the year 1872. The sale was had on the sixth day of October, 1873. The plaintiffs purchased said property of one Russell, and having paid the contract price they sold the same to William F. Alger, and authorized him to receive a conveyance from Russell. Russell conveyed to Alger in February, 1876. Alger executed a mortgage to the plaintiffs to secure the purchase money which has not been paid. The mortgage was of the date of May 1, 1876. The treasurer executed a tax deed to the defendant on the thirteenth day of November, 1876. Upon a trial to the court it was found that the plaintiffs were entitled to no relief, and the title to the property was quieted in the defendant. Plaintiffs appeal. Rowell & Milligan; for appellants. McDill & Sullivan, for appellee. ROTHROCK, J. 1. It is conceded by appellants that, as between them and Alger, they were bound to pay the taxes for which the property was sold. After the sale there were negotiations between the plaintiffs and the defendant with reference to a redemption of the property. It is claimed by the plaintiffs that they were induced by the fraud and deception of the defendant not to apply at the auditor's office, to effect a redemption, until after the time for redemption had expired. The evidence does not sustain this proposition. The plaintiffs were the parties primarily liable for the payment of the tax for which the property was sold. They had actual notice of the sale, and there were propositions for a redemption, and an offer at one time upon the part of the defendant to take less than the amount required by law to redeem, which was not accepted, and we are unable to find from the evidence that the failure to redeem resulted from anything other than plaintiff's own negligence. 2. Section 894 of the Code provides that "after the expiration of two years and nine months after the date of sale of the land for taxes, the lawful holder of the certificate of purchase may cause to be served upon the person in possession of such land or town lots, and also upon the person in whose name the same is taxed, if such person reside in the county where such land is situated, in the manner provided by law for the service of original notices, a notice signed by him, his agent or attorney, stating the date of sale, the description of the land or town lot sold, the name of the purchaser, and that the right of redemption will expire, and a deed for said land be made unless redemption from such sale be made within ninety days from the completed service thereof. * * Service shall be deemed completed when an affidavit of the service of said notice, and of the particular mode thereof, duly signed and verified by the holder of the certificate of purchase, his agent or attorney, shall have been filed with the treasurer authorized to execute the tax deed.' The defendant prepared a notice in proper form, addressed to W. F. Alger, and on the back thereof there was the following indorsement: "The within notice came into my hands for service on the fourteenth day of July, A. D. 1876, and on the same date I did serve said notice by reading to William F. Alger the within notice, and by giving him a copy of the same at Creston, Union county, Iowa. [Signed,] "A. L. GUTHRIDGE." There was an affidavit made by said Guthridge in proof of said service, and the notice, service thereof and affidavits were filed with the treasurer on the eleventh day of August, 1876. Appellants contend that the evidence shows that they made application to the auditor to redeem from the sale before the expiration of ninety days from the date of filing the notice and proof of service. This we think is incorrect. It is true there is a conflict of evidence upon this question, but we think there is not a preponderence with the plaintiffs. The auditor was examined as a witness, and testified that he did not allow the redemption to be made because the offer was made too late. With all the papers and records before him at the time, it is not at all probable that he made a mistake in his calculation of time. 3. It is said that the notice should have been served upon the plaintiffs because it was not known to the defendant that plaintiffs were interested as mortgagees; but the statute does not require notice to be served upon mortgagees unless they are in possession of the property, and then only because of such possession. 4. The service was made upon Alger alone. He was the owner of the property. The object of the statute is that notice shall be given to the owner. It is said Alger was not in possession. We think the evidence shows that he was; but, whether in possession or not, he had the legal title, and, in the absence of evidence to the contrary, his possession should be presumed. 5. It is objected that the notice require by the statute was served by the defendant. Service by the holder of the taxsale certificate is not prohibited by the statute. The requirement is that the manner of the service shall be the same as original notice; that is, by reading a copy or by leaving at the place of residence if not found. It nowhere provides that such service may not be made by any person. 6. Lastly it is urged that service was not made upon the person in whose name the land is taxed. This has reference to the person in whose name the land appears for taxation at the time the notice is served, the object being to give notice to the owner; and the statute provides that such notice shall be given to the person in whose name the land is taxed, and not to one to whom it may have been taxed in years before. It appears from the evidence that in 1875-76 the property in controversy was taxed in the unknown list, and the record before us does not show to whom the property was taxed in 1872, the year for which it was sold. No notice could, therefore, be served upon the person in whose name it was taxed for the year 1876. Notice was, however, served upon the owner, who, to say the least, was presumably in possession, and we think this was sufficient. Affirmed. JOHN DAVIDSON, Appellee, vs. C. S. VORSE, Executor, etc., Appellant. Filed December 3, 1879. Certain evidence in this case of representations claimed to have been made, it appearing that they were made after the contract was consummated, held incompetent. To render evidence of false representations inducing the making of a contract competent, it is not necessary that it (477) appear that they were made at the very time of the contract. If made during the negotiations they are admissible, and their effect is for the jury to determine. Evidence of false representations made to a third party, with the intent they should be communicated to the party to be influenced and induce his action, is competent. A note provided for reasonable attorney's fees for collection if an action should be commenced thereon. Held, that the filing of a claim against the estate of the maker, such claim being resisted, was such action as entitled the holder to the attorney's fees stipulated. Assignment of errors in this case held sufficiently specific.-[ED. Appeal from Polk circuit court. On the nineteenth day of March, 1877, N. T. Vorse executed and delivered to the plaintiff his promissory note for the sum of $844. Afterwards the said N. T. Vorse died, and C. S. Vorse was duly appointed administrator of his estate. The plaintiff filed the note in the court below as a claim against the estate. The defendant filed an answer in which he averred that the said note was given in part consideration for ten shares of stock in the Marseilles Manufacturing Company, a corporation doing business at Marseilles, Illinois, and that for the purpose of effecting a sale thereof to the decedent the plaintiff falsely and fraudulently represented that said company was doing a large and profitable business; that stock therein was at a premium of twenty-five per cent., and could not be purchased for less than that sum; and that he had been offered that amount by certain parties for his stock, but had refused to sell because the parties who proposed to purchase were operating a rival manufactory; and said plaintiff, as an extra inducement to decedent, offered said stock at $575 a share, the said shares being for $500 each; that plaintiff well knew said representations to be false; that said N. T. Vorse was induced by said fraudulent représentations to make said purchase, whereby his estate became damaged in the sum of $800. It is further averred that said N. T. Vorse made said purchase for the benefit of his son Frank Vorse, and as an advancement for him; and the plaintiff, being a director in said company, agreed with decedent that if he would purchase said stock the said Frank Vorse should be at once taken into the service of said company, at a salary of $800 per annum; that said Frank offered his services to said company, but was refused said sum of $800 per annum, and was only paid $600, and the consideration of said note has therefore failed to the extent of $200. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals. St. John & Williams, for appellant. |