I. By reference to the opinion in this cause when it was before here, 46 Iowa, 253, it will be discovered that a tax title held by plaintiff had been, in a proper action, declared to be yoid for the reason that the land was not taxable for the years for which it was sold for taxes, 1858,1859 and 1860, the -title thereof being in the United States. Thereupon plaintiff brought. this suit to recover from the county, on the ground
After the cause had been remanded to the court below, upon leave had, defendant fiied an amendment to its answer alleging:
1. That the land was patented to Jones in 1867, upon an entry made the same year, and became subject to taxation for 1868, and subsequent years, and that plaintiff cannot recover against the county for taxes paid after the land became taxable.
2. That the taxes for the year 1868, and prior years, were paid by plaintiff more than five years before the commencement of this action, and recovery, therefore, is barred by the statute of limitations.
No objections were made, or exceptions taken to the order granting leave to file this amended answer by the plaintiff, his attorney being present when it was made. At the next term plaintiff moved to strike out the amendment to the answer on the grounds:
1. It was filed after the case was decided by the Supreme Court upon a trial do novo, and the judgment of the District Court reversed, and the cause remanded.
2. The defenses made in the amendment existed at the first trial, and were not pleaded by defendant.- ■ .
3. The averments of the amended answer are in conflict with the opinion of the-Supreme Court. ■ This-motion was -overruled. The first error assigned by plaintiff assails this ruling upon the motion.
If any valid objection existed to the amendment, it should have been made when leave was asked to amend in the court below. By failure to except to the order of the court, objection thereto was waived by plaintiff, and the ruling cannot be assailed in this court. This conclusion is base dupon familiar rules prevailing here.
III. The amendment is not in conflict with our former decision in this case. "'We held that, upon the case then presented, the judgment of the court below so wanted the support of the testimony that it could not be sustained. While the decision is not thus expressed yet it is to this effect. The cause was thereupon remanded for a new trial. We conclude that the court below did not err, in refusing to strike defendant’s amended answer.
We must first inquire whether recovery for the taxes paid more than five years before the commencement of this action is barred by the statute of limitations. This inquiry will cover payments made previous to June 26th, 1871. The taxes for 1869 and prior years were paid before that date.
It may be admitted, for the purpose of the present inquiry, that the defendant was liable to plaintiff upon payment of these taxes on the ground that they were illegally assessed, the land not being subject to taxation. This is true as to all taxes levied before the entry of the land; it may be conceded as to other taxes paid prior to June 26th, 1871. We have held that an action to recover of a county, for taxes paid upon lands which were exempt from taxation, is barred in five years after the date of payment. Callanan v. The County of Madison, 45 Iowa, 561. The case before us, as to the taxes under consideration, falls within the rule and is upon all fours with the case cited. The correctness of our decision in that case is questioned by plaintiff’s counsel. We discover no reason for doubting it, and are still well satisfied with it. The rule of the decision must be regarded as the settled doctrine of this court.
Section 785 provides that where the-land is sold upon which no taxes were due, or in consequence of error in describing it in a tax receipt, “ the county shall hold the purchaser harmless by paying him the amount of the principal, and interest and costs, to which he would have been entitled had the land been rightfully sold.” But the plaintiff’s c.ase is not within the provision. The land upon which he paid was taxable, and the taxes were due; there was no error in its description.
It will be remembered that the taxes now under consideration are those that were paid after the tax deed was executed, not the taxes for which the land was sold. If either of these
It may be, but the point we do not decide, that the owner of the land is liable to plaintiff for the taxes, so far as the remedy therefor may not be barred.
VI. Counsel insist that our former decision in this case, 46 Iowa, 253, holds that defendant is liable for the'taxes paid by plaintiff. We decided' in that case the questions raised upon the facts presented by the record. The defense to the action was that Jones, when the land was assessed, had an equitable and taxable interest in the property, and it was, therefore, subject to taxation. We found that this defense was not supported by the facts, and held that the land was not taxable. No other defense being urged we held that plaintiff ought to have recovered. We disposed of the question presented to us, and our decision is limited to that question. In the case as it now comes before us other defenses.appear, and other questions arise. These we have determined as indicated above. The judgment of the District Court is
Affirmed.