45 Iowa 160 | Iowa | 1876
i. tax sam: taxes by’purcliaser: reeovery for', It is claimed by the defendants that if the plaintiff paid the taxes upon the land as he alleges, and under such circumstances as he alleges, he did but pay his own taxes, and that he cannot now , „ , _ . , , , recover the same ox them, it is doubtless true that the right of a holder of a tax deed to recover for taxes paid where the tax deed is held to be invalid is based up'on the theory that he had discharged an obligation of the owner of the land, and it being an obligation which the law invited him to discharge by purchasing at the tax sale, the owner of the land should reimburse him. If a person pays his own taxes and afterwards .loses by adverse possession the land upon which they were assessed, he must lose the taxes also. But the case at bar involves an entirely different principle. The land upon which the taxes were paid must be regarded as having belonged all the time to the defendants’ testate. He was the holder of the patent title, and remained in possession. There is no pretense that he was divested of his title unless he might have been by the'tax deed; and there is no evidence and camjot be any evidence that he was divested by that. That the validity of the tax deed could never be asserted is precisely what was adjudicated, and the adjudication is not now questioned by either party.
It may be said, indeed, that the plaintiff avers in his petition that the tax deed and sale were regular and perfect in every particular. Whether they were or not is a question into which we cannot now inquire except so far as may be
It is claimed by the appellees that this question of the right to recover for taxes paid was adjudicated in the former suit. But the decree does not so show.
It is also claimed that the plaintiff’s cause,, of-action, if any, is barred by the statute of limitations. But the statute is not pleaded.
The only remaining question is as to the amount which the plaintiff is entitled to recover. In Everett v. Beebe, 37 Iowa, 452, it was held that while the tax deed did not pass the title of the owner of the land, it did have the effect to pass “all the right, title, interest and’ claim of the State and county.” We see no reason why the tax deed should not have that effect in this case.
In the case above cited it was held that the amount which the owner should pay the purchaser is the amount which would have been due the treasurer if the taxes had not been paid by the purchaser. That we believe to be the correct rule in this case. It may be said, indeed, that such rule imposes
Eor the purposes, then, of this case, we must presume, whether true or not, that Laverty remained the owner of the land and could have paid the taxes, but neglected to do so. If any hardship results to the defendants, it is incident to the way in which they have seen fit to assert their rights.
■ We are of the opinion that they should pay the plaintiff what would have been due the treasurer if the taxes had been paid by no one. The tax of 1869 was paid by Laverty. Eor that the plaintiff cannot recover.
Reversed.