Orr v. Travacier

21 Iowa 68

Opinion

Cole, J.

—The sale for taxes was made on the 81st day of August, 1858, for the taxes of 1856.

i. tax sake: under law of 1858. By section 48 of the revenue law then in' force, and under which, the sale was made (ch. 152, Laws of 1858), the taxes for 1856 were not delinquent till the 15th day of January, 1857.

By section 49- of the same law, the treasurer was authorized to sell lands for taxes which were delinquent, and remained due and unpaid for a longer time than two years. The sale to plaintiff for the taxes of 1856 was made before the expiration of two years from the time they became delinquent. The court, therefore, did not err in holding the tax deed invalid, and in canceling the same.

2. — Hen pata. That the grantee of property sold for taxes may maintain an action, after eviction, against the real owner, for taxes paid thereon in good faith, has been decided by this court. Claussen & Kuhl v. Rayburn, 14 Iowa, 136; see, also, Byington v. Woods et al., 13 Iowa, 17. And if, by paying such taxes, he has relieved the lands from the liens therefor, it is but equitable that he, too, should have a lien thereon in his favor for such taxes, when paid by him. This is especially true where, as in this case, the owner asks and obtains affirmative relief by the cancellation of the tax deed. Where a party asks equity, he should be required to do equity.

There was error, therefore, in refusing the lien for the taxes paid by plaintiff and his assignor, and the judgment is reversed, with directions to enter a judgment therefor, with six per cent interest from date of the several payments, and enforce the same as a lien upon the lands.

Reversed.