sLYFmLD 2:. HEALX, 3
ship 97 TN.}; of range 31'W., of fifth ’prihci’pal.meridian, and theN. W.
t of S. EW.. l—··oE`section. 32,townshBip· 94 NJ, of range—31 W., of fifth prin`.
cipal meridian. To the firstrdescribed piece the defendant holds a tax
deed, executed by the treasurer of Palo Alto county on the twenty+eighth
day of April, 1879., and duly filed for record on the twenty-fourth day
of May, 1879. To the lastrdescribed piece the defendant holds a tax
deed executed by the treasurer of Palo Alto county on the twenty-third T I
of July, 1877, and duly filed for record onthe twenty~sixth of July, V
1877. The present proceeding to redeem was commenced in July, 1885, ,
more than nve years after the time of recording the treasurer’s deeds, as
above stated. From the- agreed statement of facts,- it appears in the years '
*1878 and 1879 the S. W. fof N. W. 1* of section 11 was taxed in the
name of .Ir·_rGraham. Under the provisions of section 894 of the Code
of Iowa, in order to entitle defendant to demand and the treasurer of the
county to execute a valid tax deed of these premises, it was necessary
that the holder of the tax certificate should serve notice upon said Gm-
ham that the right of redemption would expire in 90 days. Proper
proof of the service of such notice is required to be made by affidavit of
the holder ofthe certificate, or his agent, the same to be filed with the
~ treasurer. Until such notice is given, and the proper proof is filed with
the treasurer, he has noright to execute the deed. In the present case
it is admitted that the notice was in fact given, but it appears that the
athdavit of proof filed with the treasurer was defective, in that the seal -
of the notary was not attached to the jurat. V
Under the rulings made in 1tm#Lsv.W·£thr0w, 10 Iowa, 307 , and.Stephem
v. Williams, 46 Iowa, 542, it must be held that the so-called affidavit is
lacking in anessential requisite, and the proof of service was not made
by affidavit, as required by the statute. It appears, however, that the
treasurer did in fact execute a deed proper in form, which was delivered. V
to defendant, and by him duly recorded, more than five years before the
bringing of this suit; and defendants claim that the lapse of the five
years bars the rightof recovery under the provisions of section 902 of the _
Code. .
In Tmlock v. Bentley, 25 N. W. Rep. 824, the supreme court of Iowa.
held that, when a notice of the expiration of the time of redemption had
in fact been given, but the proof made thereof and filed with the .treas·
urer was defective in some particular capable of being cured by amend-
ment, thenffthe five-years limitation contained in section 902 was appli-
cable. . V , V p ,
The failure to afiix the seal to the jurat is a defect which may be rem-
edied, it being admitted in the statement of facts that M. L. Brown, be-
` fore whom the affidavit was signed, was a duly commissioned notary at
that time, and that the omission to attach the seal to the jurat was by
mistake and oversight, and hence the present question comes within the
rule in Trulock v. Bentley. It follows that the lapse of five years oper-
ates as a bar to the right of complainant to question the validity of the
deed to the S. W. ·l of N. W. 1* of section 11, and as to this quarter sec-
tion complainant’s bill must be dismissed.