49 Iowa 362 | Iowa | 1878
I. The petition alleges that plaintiff is the absolute owner in fee simple of the land in controversy, and that defendant makes some claim thereto “adverse to the estate of the plaintiff in the premises. ” The answer of defendant alleges that he holds the fee simple title to the land under a tax deed executed March 16, 1869, upon a sale for the delinquent taxes from 1858 to 1863. Plaintiff, replying to this answer, admits the tax sale and deed to defendant, but alleges that the deed has been recorded for more than five years; that he has been continuously in possession of the property for a period anterior to the date of the tax deed up to the present time, and that defendant’s right to the land under his tax deed is barred by the statute of limitations. The court below
We have heretofore held that in cases of this character, where an action to recover under a tax deed is barred by the statute, a decree may be properly rendered quieting the title in the original owner as against the tax deed. Peck v. Sexton & Son, 41 Iowa, 566; Laverty v. Sexton & Son, Id., 435; Wallace v. Sexton & Son, 44 Iowa, 257. We discover no valid objection to the rule of these cases.
III. The defendant insists that he is entitled to recover the sums paid by him in the purchase. at the tax sale, and for subsequent taxes, with penalties, interest, etc., under the doctrine that plaintiff cannot have equity until he does equity. There is force in defendant’s claim, but the trouble with it is that it was not made in the pleadings, nor in any other manner, in the court below. It does not appear that defendant raised any question in the court below involving his rights to recover the money paid by him. While his right to recover in a proper case cannot be doubted, it cannot, in the absence of pleadings presenting it, be first urged in this court. He may enforce this right by another action. See Sexton v. Henderson, 45 Iowa, 160; Sexton v. Peck, 48 Id., 250.
AFFIRMED.