| Ind. | Nov 15, 1878
This was a suit commenced in the Grant Circuit Court, to set aside a tax sale of the following lands, and to obtain a decree declaring them discharged of a lien for money paid on the sale for taxes, etc., viz.:
“ The south-west quarter-of the north-west quarter, and the north-west quarter of the south-west quarter, and the south half of the south-west quarter, of section thirty-three, in township twenty:five north, in range eight east, containing one hundred and sixty acres more or less ; also the east half of the south-east quarter of section' thirty-two, in said township and range, containing eighty acres.”
The complaint charged that said lands were illegally sold for taxes, specifying the points of illegality, one of which was that no demand for personal property was made, and averred that the plaintiff had duly tendered to the treasurer of said county, and to the defendant, the purchase-money paid at said sale, and the interest and penalties, and that he brings the amount into court, etc.
The appellee filed a demurrer to the complaint, assigning the following causes therein
1. The complaint does not state a cause of action ;
2. Defect of parties defendants;
3. Defect of parties plaintiffs ;
4. The court has not jurisdiction of the defendant in, nor of the subject-matter of, the suit;
5. The plaintiff has not legal capacity to sue; and,
6. Misjoinder of causes of action.
The demurrer was overruled and an exception entered.
An application for the removal of the cause to the United States Circuit Court was denied.
Thereupon the defendant answered :
1. The general denial; and,
2. As follows : “ The defendant, Erank McWhinney, further answering said complaint, says, the plaintiff elected to and did pay, on or before the third Monday of
Reply in general denial.
Trial by the court; finding for the plaintiff, “ and that said sale for taxes, and the certificate of purchase thereon, made by the auditor and treasurer of said Grant county, Indiana, of the lands in complaint specified, were illegal and void,” etc.
A motion for a new trial, for the reason that the finding was contrary to the evidence and the law, was overruled, and exception reserved..
A motion in arrest followed, which was also overruled, and exception noted, and judgment upon the finding entered.
The assignment of errors is as follows :
'1. Denying the application to remove the cause to the United States Court;
2. Overruling the demurrer to the complaint;
3. Overruling the motion for a new trial;
4. Overruling the motion in arrest of judgment; and,
5. Rendering judgment for the appellee.
As to the first assignment of error:
The court below held the petition and bond presented on the application for removal insufficient, and for that reason denifed the removal. It was competent and proper for the State court to pass judicially upon the sufficiency of the
. The second alleged error does not appear to us to be well assigned. We see no objection to the complaint. It will be observed that an illegal and void sale of land may take place for the collection of taxes legally assessed.
The error thirdly assigned, we think, exists. The motion for a new trial should have been sustained. The complaint in the case was not’proved. No evidence of the tender averred in it was produced upon the trial. This averment was material, and its proof essential, to • the plaintiff’s recovery. The sale was shown to have been illegal. It was proved that no attempt was'made to find personal property, before the sale of the real, though there was plenty of it upon the premises See Ellis v. Kenyon, 25 Ind. 134" court="Ind." date_filed="1865-11-15" href="https://app.midpage.ai/document/ellis-v-kenyon-7036943?utm_source=webapp" opinion_id="7036943">25 Ind. 134. But proof that the sale was illegal was not enough to entitle the plaintiff below, the appellee here, to recover. The appellee was the owner of real estate sold for taxes. No deed had been made to the purchaser of the land. The time given the owner by the statute, in which to redeem, had not expired. He was still in possession, but he was seeking, in this suit, to have that sale set aside and his land freed from liability to pay said taxes. He was seeking this upon the equity side of the court, and in his complaint recognized the ancient but still living maxim,
Section 227 of the act for the assessment of taxes, 1 R. S. 1876, p. 124, is as follows :
“ Whenever the county auditor shall discover, prior to the conveyance of any lands sold for taxes, that the sale was, for any cause whatever, invalid, he shall not convey such lands; but the purchase-money and interest thereon shall be refunded out of the county treasury to the purchaser, his representatives or assigns, on the order of the county auditor; and such land, if originally liable to taxation, and being still delinquent, shall again be placed, on the delinquent list, and the amount so refunded, with interest, be collected as in other cases.”
The lands in question were liable to taxation; hence the court could not, in this suit, decree them discharged from the payment of said taxes. See, also, other, sections of the same act, and Ward v. Montgomery, 57 Ind. 276.
The case of Harrison v. Haas, 25 Ind. 281, is directly in point. The syllabus of that case is this: “Suit to enjoin the execution of a deed under a sale for taxes, and to remove the cloud from the title. The complaint alleged that the sale was illegal, because there was personal property out of which the taxes might have been made.
“ Held, that a court of equity-will not interfere to give the relief sought, until the amount of the taxes has been paid or tendered to the purchaser,” or, we may add, to the county for the purchaser.
The judgment is reversed, with costs; cause remanded for further proceedings in accordance with this opinion.