66 Iowa 88 | Iowa | 1885
The sale in question was made to the defendant, Condron, and was for taxes of 1875,1876,1877 and 1878. The court set aside the sale, but found that the plaintiff never owned more than an undivided half of the premises, and quieted
The fact appears to be that in the action brought by Duffie the defendants were notified merely by publication. None of them appeared before judgment; but the principal defendant, Langsdale, appeared afterwards and applied for an order for retrial, which was granted. We suppose that the application was made, and the order granted, under section 2877 of the Code. After the order was granted, Langsdale caused the case to be removed to the circuit court of the United States, and Duffie insists that no judgment was rendered in that court, but that the action was dismissed; and his legal proposition is that, if such is the fact, the judgment formerly obtained remains unaffected. As showing the fact of dismissal, he relies upon a stipulation of counsel introduced in evidence. As supporting his legal proposition, he relies upon a provision of the section above cited, that “ upon the new trial the court may confirm the former judgment, or may modify or set it aside.” He also relies upon Morton v. Coffin, 29 Iowa, 235.
While it may be that the United States circuit court did not render a formal judgment setting the former judgment aside in the state court, as perhaps it could not do, it did, we
We are inclined to think that Duffie paid the taxes in good faith, and under the supposition that he was the owner of the land. Possibly the circumstances were such under which he paid them that he was entitled to recover the same upon an implied contract from the person who was at that time the owner of the land, and if so that he was, as against such person, entitled to a lien upon the land. This court has held that under some circumstances taxes- paid by mistake respecting title may be recovered from the person benefited, and as against such person may be declared a lien upon the land. Goodnow v. Moulton, 51 Iowa, 555; Same v. Wells, 54 Id., 326. But the rule of those cases is not, we think, applicable to this. There is no claim made in argument that these taxes are recoverable from the plaintiff. The most that is claimed is that they are enforceable as a lien. But, to justify us in so holding, we should be obliged to hold that the plaintiff knew, not only that the taxes had been paid by Duffie under a mistake, but that the circumstances were of that peculiar character that the case is brought within the rule of the cases above referred to, and is distinguishable from Garrigan v. Knight, 47 Iowa, 525. Now, we have to to say that we are unable to find either of these facts. There is some evidence that one Wray was informed that Duffie paid the taxes under a claim that he was the owner of the land, and it is said that Wray was the plaintiff’s agent. But we are unable to find from the evidence that he was. The
Affirmed.