4 momma nmoncran.
Touching the N. W. ir of S. W. { of section 32, it appears that the tax
deed was executed on the twenty-third of July, 1877. The notice filed
with the treasurer was an affidavit showing that a notice addressed to one
J. M. Eldridge, or the unknown owners, was published for the requisite
length of time in a newspaper of Palo Alto county. The land at the
_ time the notice was published was taxed in the name of M. Healy, the
defendant. It does not appear that the land was ever taxed to Eldridge,
e or that he ever had any interest therein. The facts are therefore that
, the land was assessed in the name of the person holding the certificate
of purchase, and that no notice of the expiration of the time of redemp-
tion was given to any one except to Eldridge; and it does not appear
thathe had any interest whatever in the land. In fact, therefore, no
notice of the expiration of the time of redemption was given, and the
question is whether the fact that the land was assessed in the name of
Healy, the holder of the tax certificate, will dispense with the necessity
of doing that which the statute expressly requires, ri. e., giving notice to
the person in whose name the property is taxed. On the one hand, it
is argued that giving notice to Healy would be a vain and useless thing,
because he was the very party who was about to apply to have the deed
executed, and he already knew all the notice could give him knowledge
of. On the other, it is said the requirement of the statute is impera-
‘* tive, and, unless obeyed, the treasurer has no right to execute the deed.
The spirit of the section in question is to provide that the right of re-
demption shall not be lost to the owner of the land until he has had 90
days’ notice of the fact that the time of redemption is drawing to an end.
The letter of the section requires service of the notice upon the person
in whose name the property is taxed. In the present case, the defend-
ant does not show or claim that he has fulfilled the spirit-of the section
by giving notice to the actual owner, and admits that he has not ful-
I filled the letter of the statute. The treasurer had no right to sit in judg-
ment upon the question whether the defendant was excused from obey-
ing the letter of the statute. No notice was given, and, in the absence
thereof, the treasurer could not lawfully execute the deed. The issu-
ance thereof was_a void act, and is not cured by the five-years limitation
found in section 902. It is a defect not curable by any amendment to `
the papers or proofs, and, under the rule recognized by the supreme court
of Iowa in Tmlcck v. Bentley, the five-years limitation is not applicable.
As to this quarter section, therefore, complainant is entitled to a de-
cree entitling him to redeem said quarter section.
The costs will be equally divided.