The Rights of the Parties - Rents and Profits. See CRIMINAL LAW, sub-titles NUISANCE; IN- recover the value of permanent improvements TOXICATING LIQUORS. made under color of title. Parsons v. Moses, 16 Iowa, 440. OCCUPYING CLAIMANT.* I. THE RIGHTS OF THE PARTIES. a. Rents and profits. b. Improvements. c. Rights of assignees. II. JUDGMENT, KIND AND CHARACTER OF. I. THE RIGHTS OF THE PARTIES. 1. Rents and profits. In cases under the law in relation to occupying claimants, the owner is entitled to the rents and profits according to the value of the land for the purpose to which it is devoted by the occupant; and the occupant is to pay what the use of the land is worth to him. Dungan v. Von Puhl, 8 Iowa, 263. 2. Limitation. The limitation upon the right of the owner to recover for the value of rents and profits of real estate provided in section 3576 of the Revision (§ 3261, Code of 1873), does not apply to actions under chapter 97 of the Revision (chap. 7, title 13, Code of 1873), to The provisions of the statute relating to the rights of occupying claimants, constituted chap. 60, Code of 1851. They were reprinted as chap. 97, Revision of 1860. Chapter 97 of the Revision has, with a few changes, been reprinted as chap. 7 of title xiii, Code of 1873. It is here set out to explain the references thereto in the text. The figures in parentheses denote sections as they stood in Code of 1851; the others as they stood in Revision of 1860. SEC. 2264. (1233.) Where an occupant of land has color of title thereto, and in good faith has made any valuable improvement thereon, and is afterward in the proper action found not to be the rightful owner thereof, no execution shall issue to put the plaintiff in possession of the property, after the filing of the petition hereinafter mentioned, until the provisions of this chapter have been complied with. SEC. 2265. (1234.) Such petition must set forth the grounds on which the defendant seeks relief, stating with other things as accurately as practicable the value of the improvements upon the lands as well as the value of the lands aside from the improvements. SEC. 2266. (1235.) All issues joined thereon must be tried as in ordinary cases, and if the value of the land or of the improvements is in controversy such value must be ascertained on the trial. SEC. 2267. (1236). The plaintiff in the main action may thereupon pay the appraised value of the improvements and take the property. (1237 and 1238) [repealed and substituted by article 2 hereof.] 3. Set-off. In an action under the occupying claimant law to recover the value of permanent improvements made upon real estate, the owner may set off the rents and profits which have accrued during the time in which the improvements have been made. Ibid. 4. Rents and profits after verdict in main action. In an action under the occupying claimant's law the defendant is entitled to set off against plaintiff's demand the rents and profits accruing after the verdict in the action of right and before verdict in the action pending. Ibid. 5. Verdict conclusive. The verdict of a jury in an action of right, fixing the value of the rents and profits for the six years next preceding the commencement of such action, is conclusive evidence of such value in a subsequent action under the law for the benefit of occupying claimants. Ibid. 6. Quere. Is the owner entitled to compensa. tion for rents and profits accruing after the value of the permanent improvements has been determined in a proceeding? Ibid. 7. Interest: rent. The owner of the land is entitled to rent for the occupation, based upon SEC. 2269. (1240.) Any person has also such color of title who has occupied a tract of land by himself or by those under whom he claims for the term of five years, or who has thus occupied the land for a less term than five years if he or those under whom he claims have at any time during such occupancy [with the knowledge and consent, express or implied, of the real owner, made any valuable improvement thereon, or where he, or those under whom he claims, have, at any time during such occupancy] paid the ordinary county taxes thereon for any one year, and if two years afterward elapsed without a the owner of the land, provided such occupancy is repayment or proffer of repayment of the same by continued up to the time at which the suit is brought by which the recovery of the land is obtained as above contemplated; [provided, that nothing in this act shall be construed to give tenants color of title against their landlords.] SEC. 2270. (1211.) In the cases above provided for, if the land by cutting timber or otherwise, the plaintiff the occupying claimant has committed any injury to may set the same off against any claim for improvements made by such claimant. SEC. 2271. (1242.) It is a sufficient cause of challenge land or the improvements, that he is interested in a to any juror selected to appraise the value of the like question. cution to put himself in possession of his property SEC. 2272. (1243.) The plaintiff is entitled to an exein accordance with the provisions of this chapter, but not otherwise. SEC. 2273. (1244.) The regulations contained in this chapter are intended to be retrospective. + Reprinted as section 3261, Code of 1873, and as follows: SEC. 2268. (1239.) The purchaser in good faith at any judicial or tax sale made by the proper person or officer has color of title within the meaning of this chapter, whether such person or officer had sufficient The plaintiff cannot recover for the use and occuauthority to sell or not, unless such want of au-pation of the premises for more than six years prior thority was known to such purchaser at the time of to the commencement of the action. the sale. And the rights of such purchaser pass to his assignees or representatives. Improvements. quired to pay such interest, the rent should be computed on the value of the land alone. Childs V. Shower, 18 Iowa, 261. the value of the lands and the improvements, occupying claimant of land, under color of where he is required to pay interest upon the title, who has in good faith made valuable value of the improvements; where he is not re-improvements thereon, and who is afterward, in the proper action, found not to be the rightful owner thereof, to have his improvements appraised that he may obtain payment therefor, or in default of such payment being made in the time fixed by the court, to enable the claimant to acquire the title to the land by paying to the owner its appraised value aside from the improvements. Dungan v. Von Puhl, 8 Iowa, 263. b. Improvements. 8. Improvements. Under section 1233 of the Code of 1851, in relation to occupying claimants, a defendant can at any time, while in the possession of the premises, file his petition to have the value of the improvements made by him, ascertained, and to obtain payment for the same before surrendering the possession. Dunn v. Starkweather, 6 Iowa, 466. 9. The right of an occupying claimant to the value of his improvements, on a recovery against him in an action of right, is entirely statutory. He must pursue the statute. The right to recover their value does not exist at common law, though equity, in special cases, has afforded relief. Webster v. Stewart, 6 Iowa, 401. 10. The "rightful owner" is only liable for improvements when the defendant files his petition as prescribed by the statute. Ibid. 11. And it was accordingly held, that where the rightful owner of real estate obtains possession of his property without resorting to an action, he is not liable in an action at law for the value of improvements made by another. Ibid. 12. If the occupying claimant is unjustly dispossessed, he has the summary remedy of forcible entry and detainer, or may, in certain cases, resort to equity, for the value of his improvements. Ibid. 13. Pleading. The facts and circumstances which show that the right could accrue to the party claiming the benefit of the act must be set out by him in his pleading. Gillis v. Black, 6 Iowa, 439: 14. Improvements must have been made in good faith. A party seeking to recover the value of improvements made by him, upon the land of another, must show that he made the improvement in good faith and under color of title; he can recover only by bringing himself within the statutory provision defining the remedy. Webster v. Stewart, 6 Iowa, 401. 15. Object of the statute in relation to occupying claimants. The proceedings authorized oy the statute were designed to enable the As 16. Value of land and improvements. indispensable to the remedy designed to be afforded by the statute in relation to occupying claimants, it is required that the value of the land, aside from the improvements, as well as the value of the improvements themselves, shall be ascertained by the jury unless such value is agreed upon by the parties. Ibid. 17. Under our statute the occupant of land under color of title, who is found not to be the rightful owner thereof, is to be paid for valuable improvements made by him in good faith, their value to be ascertained by their worth at the time the appraisement is made; and as resulting from this rule, he should not be charged with the rent of the improvements made by him, but should pay whatever the land has been worth to him. Ibid. 18. Where land is inclosed and put in a state suitable for cultivation, and the raising of crops, a value is added to the land above the mere cost or value of the improvements put upon it; and the occupant may reasonably be charged a fair sum for the use and occupation of the land in its improved state. In such a case he pays rent, not upon the improvements, but upon the land, worth more for the purpose for which he uses it, by reason of its being brought into a state fit for cultivation. Ibid. 19. Estimate, how made. The estimate should be made on all the land brought into a state of cultivation by him and suitable for the raising of crops or for farming purposes, but no rent is to be charged for the use of buildings or farm fixtures erected by the occupant; and a deduction is to be made for any injury done to the land by cutting timber or otherwise, by the occupant while in his possession. Ibid. 20. Lease: color of title. The lessee of real property, holding under a lessor who has but a life estate therein, has no color of title within occupying claimant law (§§ 2264-2276, Revision, the meaning of the statute, and cannot recover S 1976-1987, Code of 1873), the possession unin a proceeding under said chapter for improve-der and during which the improvements are ments placed upon such premises. Wiltse, guard- made must be adverse to the holder of the ian, v. Hurley et al., 11 Iowa, 473. paramount title. Keas v. Burns, 23 Iowa, 235. 21. Personal possession. The personal possession of the claimant of real estate is not essential to constitute him an occupant; the occupancy of the tenant is the occupancy of the landlord. Parsons v. Moses, 16 Iowa, 440. 22. A party out of the possession of real estate cannot maintain an action under chapter 80 of the Code of 1851 (art. 1, chap. 97, Rev. 1860) against the holder of the legal title, to recover the value of improvements made by him upon such real estate. Following and re-affirming Webster v. Stewart, 6 Iowa, 401; Claussen & Kuehl v. Rayburn, 14 Ibid. 136. 23. Half-breed tract. An occupying claimant of lands situated on the half-breed tract, who acquired his claim or color of title adversely to the decree of partition, and who has, ever since the acquisition of his claim, resisted said decree, believing it to be fraudulent and void, is entitled to compensation for improvements made upon the land. Craton v. Wright, 16 Iowa, 133. 24. Improvements made after suit. An occupying claimant is not entitled to improvements made after he is found not to be the right ful owner. Ibid. 25. Defective tax deed. A lot in the town of Fort Des Moines, sold at tax-sale, was conveyed to the purchaser by a deed setting out the following description: "Town Ft. De Mos.: Lots-3, 6, 7, Block 2." Held, that the alleged defect in the description did not deprive the purchaser of color of title under the sale, within the meaning of the statute. Childs v. Shower, 18 Iowa, 261. 26. Measure of value. The occupant is not entitled to the expense or cost of making improvements, but to the amount only which they have really or actually augmented the value of the property. Ibid. c. Rights of assignees. 29. Right to compensation assignable. The right of an occupying claimant to compensation for improvements made in good faith, with color of title, may be assigned, and the assignee is invested with all the rights of his assignor. Craton v. Wright, 16 Iowa, 133. 30. The claim of an occupying claimant for improvements made under the color of title, is the subject of sale and transfer; and the assignee of such a claim takes all the right of action of the assignor. (Craton v. Wright, ante.) Parsons v. Moses, 16 Iowa, 440. 31. Assignee. A grantee is an assignee, within the meaning of section 2268 of the Revision of 1860. Childs v. Shower, 18 Iowa, 261. II. JUDGMENT: KIND AND CHARACTER OF. tention of the statute in relation to occupying 32. No personal judgment. It is not the inrendered in favor of either party, or that the claimants, that a personal judgment should be lands or improvements should be ordered to be sold to pay such judgment. Dungan v. Von* Puhl, 8 Iowa, 263. 33. -objection may be taken on appeal. The rendition of such a judgment, without questioning the right of the court, is not a waiver of all objections to such a judgment by the defendant, nor is he precluded from objecting to such a judgment, for the first time, in the appellate court. Ibid. 34. -When the appraisement is made, no personal judgment for the ascertained value of the improvements can be rendered by the court, against the owner of the land. Ibid. 35. Statute: effect on prior judgment. While the act entitled "An act to amend chapter 80 of the Code," approved March 23, 1858, is made to 27. Granted under title bond. The vendee of real estate holding it under a bond for a deed conditioned upon the payment of the purchase-apply to judgments rendered previous to its money, cannot recover against the vendor or his grantee under the occupying claimant act for improvements made thereon. Janes v. Graves, 21 Iowa, 474. 28. Possession must be adverse. To establish a right to pay for improvements under our passage, it cannot have the effect to render valid, a judgment in personam against the owner of land, for improvements made thereon by an occupying claimant, nor an order for the sale of the land under a special execution to be issued on such judgment. Ibid. Generally. 36. It was clearly the purpose of the legislature, by chapter 153, Laws 1858 (Rev. 1860, § 2274), to invest the courts with power to render a money judgment in favor of the occupant for the amount of his improvements. Childs v. Shower, 18 Iowa, 261. 37. Statute unconstitutional. Said statute authorizing the rendition of a general money judgment in favor of the occupying claimant, and a general execution to enforce the same, is unconstitutional and invalid. Ibid. OFFICE AND OFFICER. I. GENERALLY. II. SERVICE AND RETURN OF PROCESS. III. LIABILITY OF OFFICERS AND SURETIES FOR THEIR CONDUCT. a. In general. b. On official bonds. IV. OFFICER DE FACTO. V. COMPENSATION. VI. VACANCY. I: GENERALLY. 1. Presumption. An officer will be presumed to have done his duty as commanded until the contrary appears. Rowan v. Lamb, 4 G. Gr. 468; Barney v. Buena Vista Co., 33 Iowa, 261; Dollarhide v. The Bd. of Commissioners, 1 G. Gr. 158; Cole v. Porter, 4 Ibid. 510; McGuffie v. Dervine, 1 G. Gr. 251. 2. Every legal presumption is, that an officer has discharged his duty. Cole v. Porter, 4 G. Gr. 510, citing, Dollarhide v. Muscatine County, 1 Ibid. 158; McGuffie v. Dervine, Ibid. 251; Barney v. Chittenden, 2 Ibid. 165; Neally v. Redman, 5 Iowa, 387. 3. The power to detain an offender in custody for a reasonable length of time is inherent to the duties of a peace officer. Hutchinson y. Sangster, 4 G. Gr. 340. 4. Where a party contracts in an official capacity, which is disclosed in the contract itself, he is not personally liable on the contract, although he fails to affix to his signature his official title. Lyon v. Adamson et al., 7 Iowa, 509. 5. Right to office. The right to an office cannot be determined in an action of replevin, or in any action other than a proceeding in the nature of a writ of quo warranto, or by information (or possibly by mandamus), as provided by chapter 157 of the Revision of 1860. Desmond v. McCarthy, 17 Iowa, 525. 6. Rights of official incumbent cannot be adjudicated on habeas corpus. Where the incumbent of an office holds it by color of right, though he is not an officer de jure, his right will not be inquired into on habeas corpus. It can be determined only in a direct proceeding instituted for that purpose. Ex parte Strahl, 16 Iowa, 369. 7. But if a mere usurper should, without color of right, attempt to imprison a person, the legality of the restraint could be inquired into on habeas corpus. Ibid. 8. Legislative power over offices. The legislature, when not inhibited by the constitution, has power to abolish an office, to increase or decrease the duties imposed upon an incumbent, and to add to or take from his salary; and may also add to or change the methods by which vacancies may occur, and make such changes applicable to existing offices and those who hold them. Bryan v. Cattell, Auditor of State, 15 Iowa, 538. 9. Deputy may administer oaths. The deputy of the clerk of the district court has power to administer oaths; and it is not necessary to his authority to show the inability or absence of the principal. Finn & Co. v. Rose et ux., 12 Iowa. 565. 10. The deputy of the clerk of the district court has the same power to administer oaths as his principal. Wood v. Bailey, 12 Iowa, 46. 11. - may approve bond and issue writ. The deputy clerk may approve an attachment bond and issue the writ. Finn & Co. v. Rose et ux., 12 Iowa, 565. collected by the treasurer, as taxes, and applied to his own use. Estep v. Keokuk County, 18 Iowa, 199. property, but did not show that it was attached as the property of the creditor. Held, that the levy was void and gave no jurisdiction to the court over the property attached; and also, that it could not be favored by legal intendment, and could be declared void in a collateral proceeding. 15. Evidence of official authority. In relation to officers, civil and municipal, when the question arises between third parties, parol evidence is admissible to show that they were | Tiffany v. Glover, 3 G. Gr. 387. officers at a given time, and, perhaps, to show that they acted as such. Gourley v. Hankins, 2 Iowa, 75. 20. Where the writ of attachment commanded the sheriff to levy "on the defendant's property in Lee county, Iowa," and the sheriff re16. As between third persons, when the ques- turned on the back of the writ "Served the tion arises, whether a person doing an act was within attachment by attaching," etc., certain an officer, it is sufficient to show him to be such property described in the return, it will be prede facto; and it is not required of the person sumed that the property attached was the propclaiming or justifying under the act of the offi-erty of the debtor. Overruling Tiffany v. Glover, cer, to show that he was such, by the highest and best evidence. This is required when the officer himself is a party, and he justifies, or claims, by virtue of his office. Ibid. 17. Distraint for taxes. Where, in an action of replevin against an officer, brought to recover the possession of property distrained for taxes, the plaintiff offered in evidence the assessment roll under which the officer acted, without urging any objection to its validity, and where the plaintiff admitted in his pleadings that the defendant was the proper officer and acting as such under the said assessment roll and a warrant; held, that it was unnecessary for the officer to show affirmatively the power under which he acted, that having already been done for him by the plaintiff. Hershey v. Fry, 1 Iowa, 593. 18. Where, in an action of replevin against an officer to recover the possession of property distrained for city taxes, the plaintiff, after offering the assessment roll in evidence, proposed to prove by the city assessor that he had not called on plaintiff at the time he made the assessment, but that, in making the same, he had copied the amount of personalty assessed to plaintiff, from the county list; and also, that the property so copied and assessed was not within the city limits at the time of such assessment, but consisted of a stack of lumber outside of said city, which evidence was rejected by the court; held, that the evidence was properly rejected, being, under the circumstances, inadmissible to tend to fix the liability of the defendant. Ibid. II. SERVICE AND RETURN OF PROCESS. 19. Presumption. The return of the sheriff upon a writ of attachment showed a levy upon Vol. 2. 106 3 G. Gr. 387, supra; Rowen et al. v. Lamb, 4 Ibid. 468, and cases in § 1, ante. 21. Evidence. The return of an officer, as to facts which are no part of his official duty, is incompetent to prove the existence of such facts. He should be sworn as a witness. Wickersham v. Reeves & Miller, 1 Iowa, 413. In an action 22. Conclusiveness of return. for damages for failing to obey a subpoena, the return of service upon the subpoena is not conclusive upon the parties; and the plaintiff is entitled to show on the trial, as a matter of fact, independent of the return of the officer, that the writ was duly and legally served. McCall v. Butterworth, 8 Iowa, 329. 23. The rule that parol evidence is not admissible to contradict an officer's return is not applicable in an action against a constable for negligently permitting property upon which he had levied an execution to be taken from him. Harper v. Moffit et al., 11 Iowa, 527. 24. Quere, can the return of an officer be contradicted by parol evidence? Kingsbury v. Buchanan, 11 Iowa, 387. 25. The return of a sheriff as to the circumstances and facts attending the service of a writ is not conclusive. Pomroy & Co. v. Parmlee, 9 Iowa, 140. 26. Where, in a suit in chancery to quiet title, the complainant, to prove that the defendant purchased the premises at sheriff's sale, with notice of his rights, offered in evidence a notice to the sheriff of his rights under a deed, and an indorsement thereon, made by the officer who conducted the sale, that he had read the notice at the time of the sale, which evidence was objected to by respondents, and rejected by the court: held, that the reading of the notice, and |