Storm Lake Bank v. Buena Vista County

| Iowa | Apr 24, 1885

Roti-irook, J .

I. The action was commenced on the fifth day of July, 1884, and it is averred in the petition that the plaintiff purchased the real estate at tax sale on the second day of October, 1877, and paid the treasurer the amount of the taxes, costs, and penalties, and took a certificate of purchase of said property, and that in March, 1878, plaintiff paid to the treasurer the taxes upon the property for the year 1877; that prior to said tax sale to the plaintiff the taxes on said real estate had been fully paid, and at the time of said sale and purchase no taxes were due against the same, and the sale was therefore void and of no effect; that said sale was made by the treasurer of the county under the mistaken belief that said taxes were due and unpaid, and that plaintiff first learned that said sale was void on or about July 5, 1880; and that on the tenth day of January, 1884, plaintiff presented to the board of supervisors of the county a claim for the amounts paid under said erroneous sale, and demanded payment of the same, until 10 per cent interest from the date of said payment, which demand was refused.

1. tax sale • take^viíer!" recovery of1' atfsíSefstattions. The demurrer was upon the ground that the cause of action was barred by the statute of limitations. The action was brought under section 899 of the Code, which provides that “ when, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time, * * * the county is to hold the purchaser harmless by paying him the amount of principal, interest and costs to which he would have been entitled had the land been rightfully sold. * * *” Actions of this character are barred in five.years from the time the causes thereof accrue, (Code, § 2529,) and the plaintiff paid the money which it seeks to recover back more than five years before the commencement of the action. Rut section 2530 of the Code provides that, “in actions for relief on the ground of fraud or mistake, * * * the cause of action shall not be deemed to have accrued until the fraud or mistake * * * complained of shall have been discovered by the party aggrieved.”

This is an action for relief on the ground of mistake, and it is averred in the petition that the mistake was not discovered by the plaintiff until July 5, 1880, which was within five years of the commencement of the action. Counsel for appellant cites us to the cases of Callanan v. County of Madison, 45 Iowa, 561" court="Iowa" date_filed="1877-04-06" href="https://app.midpage.ai/document/callanan-v-county-of-madison-7097287?utm_source=webapp" opinion_id="7097287">45 Iowa, 561, and Beecher v. County of Clay, 52 Id., 140, as decisive of the question under consideration. In the first-named case, the plaintiff sought to recover for taxes paid, which had been illegally assessed, and the action was brought under Revision, § 726, (Code, § 870.) It was not sought to avoid the statute of limitations in that case by section 2530 of the Code. The last-named case was also an action to recover for illegal taxes paid, and recovery was sought under section 870 of the Code. The plaintiff claimed that the cause of action should not be held to have accrued until he discovered that there was no regular levy of the illegal tax. But the action was not founded on the fact that a mistake was made in this respect. It is stated in the opinion that “ the gravamen, of the complaint is, not that he made a mistake as to the fact of the levy of the taxes, but that he has paid illegal taxes, wbicb the board of supervisors refuse to order refunded.”

In the ease at bar, the action is grounded upon the mistaken fact that the taxes had not been paid, .and we think that neither of the cited cases affects the question, and that the petition did not show on its face that it was barred by the statute of limitations.

2. practice courtGtaffling putaHon. 1 II. It is claimed that in computing the amount of the recovery an error was made in the interest allowed to the plaintiff. If there was any error in this respect, it involves so small an amount that we would not feel called upon to modify the judgment. Besides, it does not appear that the alleged error was called to the attention of the district court.

Affirmed.