Rothrook, J".
i origun-ai, “cabypubUoacieüoy oT'nmdantfor.
*111“in action to ' quirí tax _ tutfonaiity o£ statute. *110I. The first question presented in argument pertains to the sufficiency of the affidavit for authority to ma^e service by publication in the action to title. ' Section 2618 of the Code provides that “ service may be made by publication when an affidavit jg f¡je(j that personai service cannot be made on the defendant within this state, in either of the following cases. * * * (6) In actions which relate to, or the subject of which is, real or personal property *111in this state, when any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of this state, or a foreign corporation. íil 33 It will be observed that the affidavit in question is in exact accord with the provisions of the statute. There is no requirement that the affidavit shall state that the defendant is a non-resident of the state. It is true that the non-residence of the defendant is a jurisdictional fact, but it is to be ascertained and proved the same as auy other necessary fact in the case. If it was required by law that the non-residence should be shown by the affidavit for publication, of course it must so appear, and we are inclined to think that an omission thereof in the affidavit would be jurisdictional. But, as there is no such requirement, it was competent to show the non-residence by other evidence. We have been cited to no case inconsistent with these views, and in view of the language of the statute, and of what we know of the practice in this state for many years under it, and upon which many titles to land are founded, the construction claimed by counsel for appellee ought not to be entertained, and the same may be said of the claim made that the suit was a per-x sonal action, and that the statute authorizing service by publication is unconstitutional. We think the demurrer to this (the fourth) count of the answer should have been overruled.
3. tax deed: action to cancel: necessity amount tore-deem. II. Section 897 of the Code provides that “no person shall be permitted to question the title acquired by a treasurer’s deed without' first showing that he, or the . „ person under whom lie claims title, had title* to * _ ^e Pr0Pei’ty at the time of the sale, or that the title was obtained from the United States or this state after the sale, and that all' taxes due upon the property have been paid by such person, or the person under whom he claims title as aforesaid. * * * ” It is *112claimed by counsel for appellant that, under this provision of the law, it was the duty of the plaintiff to pay or tender to the defendant the amount of taxes and penalties before commencing the action. It has been the practice in this state in this class of actions to aver in the petition a readiness and willingness to reimburse the title-holder for the taxes paid by him,, whenever the amount shall be ascertained by the court, and, indeed, in all equitable actions, a formal tender by the plaintiff has not been thought necessary to maintain the suit. Binford v. Boardman, 44 Iowa, 53" court="Iowa" date_filed="1876-09-20" href="https://app.midpage.ai/document/binford-v-boardman-7096974?utm_source=webapp" opinion_id="7096974">44 Iowa, 53. But it is claimed by counsel for appellant that the above-cited provision of the statute is an absolute requirement that the plaintiff must show that he, or the person under whom he claims title, has paid all taxes upon the land. This may be true, if it be claimed that any taxes are unpaid; that is, if it is made to appear that taxes are due to the state or county upon the land, the owner shall not be permitted to question the tax title; and there may be cases where such a state of facts may exist.
The holder of the tax title may fail to pay taxes after he acquires his deed. The statute cannot be held to mean that no person shall question a tax title without first paying the tax title holder all the taxes he has paid, with interest and penalties. This would not be a payment of taxes. It would be a reimbursement for taxes jmevionsly paid; and further, if the appellant’s position be correct, it would be within the power of the holder of the ta.x title to preclude all inquiry into the validity of his title by simply refusing to receive payment from the owner, because the statute requires absolute payment, and not merely a tender of payment. In our opinion.the demurrer to the fifth count of the answer was properly sustained.
For the error in sustaining the demurrer to the fourth count of the answer, the judgment is
Reversed.