Cole, J.
1. Corporation municipal: vacation of town plats: taxes. — I. During the trial and before the plaintiff abandoned the claim that the lots and blocks were exempt from taxation by the city, the defendant ° . 7 ottered to prove by a witness then on the , a stand, that the city of Lyons was indebted m a large sum, incurred prior to 1863, and the court admitted the testimony against the plaintiff’s objections. This ruling is assigned as error. By section six of the act of 1862 providing for the vacation of town plats, the vacation of any plat or part thereof, it is enacted, shall not impair the liability of such plat or part thereof for its portion of any existing debts.' Laws of 1862, p. 19. In view of this statute and the question then’ before the court, we cannot say that it was error to admit the testimony. We do not deem it necessary or proper for us, under the state of this record, to pass upon the question made as to the constitutionality of that act.
Upon the trial it was admitted, and so stated in the bill of exceptions, “that the interest of said defendant in the property seized was the amount of taxes, and interest and costs of distraint, if said lands were held liable for taxation.” This admission' relieves us from deciding the questions made by appellant’s counsel as to the amount of the judgment below and the failure of the jury to find the value of defendant’s interest in the property.
2.- taxation of agricultural lands. II. The only other question involved in the case is as to the liability of the forty acres and the ten acres, all ly-ing together, to taxation for city purposes, The proof shows it to be occupied for agricultural purposes; it is a farm simply; it is remote from the city proper; no streets or alleys have ever been woi’ked to or near it; the plaintiff’s addition adjoins it on the north, but the evidence shows that much of it is inclosed, and in actual cultivation as farm lands; that portion of plaintiff’s addition lying on the east of the [422]*422fifty acres, never was used as lots, and was, before the assessment of 1863, vacated under the law of 1862. There is no proof making the fifty acres liable to taxation for city purposes in 1863, under the rule as heretofore laid down in numerous cases, by this court, and the verdict of the jury was contrary to the evidence, and should have been set aside.
Under the special findings and the agreement of plaintiff, the defendant, in case he so elects, is entitled to a judgment for the amount of the taxes and interest, and costs of distraint due on the lots and blocks, and also to his costs in the District Court; otherwise a new trial will be ordered. The appellant will recover costs in this court.
Reversed.
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