Barr v. Patrick

59 Iowa 134 | Iowa | 1882

Eothrock, J.

It is unnecessary to set out the grounds of the demurrer at length. They were to the effect that the defendant being the owner had the right to allow his land to be sold for taxes, and that as the vendor’s lien was not a personal claim against defendant, but was superior to the claim of defendant, he had the right to cease paying taxes and allow the land to be taken in satisfaction of the vendor’s lien.

"We are unable to conceive any principle, legal or equitable, upon which this action can be sustained. The plaintiff and defendant had conflicting claims or liens upon the land. The plaintiff’s rights were adjudged to be superior to the defendant’s title, right, or claim. See 52 Iowa, TO4. In pursuance of said adjudication, and without redeeming from the tax sales and asking that the amount paid by him be included in the decree, the plaintiff caused the land to be sold with the lien of the tax sales upon it, became the purchaser himself, and afterwards redeemed from the sales, and seeks to recover the amount paid in a personal action against the defendant. "We think his claim to recover may be answered by the single consideration that when this property was offered at execution sale, whoever bid, did so upon the theory that- the taxes were a lien and bid that much less than he would have given otherwise for the land. Besides there is no privity between these parties.

It is true as claimed by appellant that the owner of the land is personally liable for taxes thereon. But in this case the taxes were paid by the sale of the land, and we know of no principle by which a third person may redeem from the sale and sue the owner for the amount paid to redeem. The cases which hold that where a tax title is held invalid the holder thereof is nevertheless entitled to recover for the taxes paid by him, proceeds upon the ground that the owner is permitted to recover or retain his land by performing the duty which equity demands of him, which is the payment of taxes on the land.

But that rule can have no application where two parties have a legal contest over their respective rights to the land, and where the successful party seeks to recover taxes which the other neglected to pay, or, it may be, purposely omitted to pay, upon the ground that he expected to lose the land. In such case there is no such privity between the parties that one can recover from the other, on account of taxes upon the property.

Affirmed.