Sears v. Marshall County

Rothrook, J. It seems to be conceded in the argument that the railroad tax is the only subject of contention. According to the averments in the petition, it was paid on the 11th day of May, 1872, some time before it was certified by the township trustees. In 1873, the real estate was sold for the tax, notwithstanding it had been paid in 1872. It is not alleged that there has been any redemption from that sale. In 1878 it was again sold by the treasurer for the same tax. The plaintiff redeemed from this last sale, and seeks to recover of the county the amount paid in redemption. We have then the question whether when a railroad tax has been paid, and the land upon which the tax was levied has been twice wrongfully sold, the owner may redeem from the last sale, and recover the amount paid in redemption from the county. Leaving out of view the question whether or not a railroad aid tax may under any circumstance be recovered back from [605] the county (see Barnes v. Marshall County, 56 Iowa, 20), we are clearly of the opinion that where the owner redeems from a void sale — void because the tax for which the sale was made has been twice paid, once voluntarily and again by a previous sale of the property — he cannot recover the amount paid in redemption from the county. He cannot thus make the county his debtor. The tax sale being utterly void, his remedy is to proceed against the holder of the certificate or tax deed, to cancel the void transaction. As exactly in point, see Morris v. The County of Sioux, 42 Iowa, 416. It is said, however, that this case is overruled by Richards v. Wapello County, 48 Iowa, 507. We do not so understand it. That was a payment of a tax which should not have been assessed, and it was held that it could be recovered back from the county. In other cases cited by counsel for appellant, the taxes sought to be recovered back were erroneous and illegal, but they were nevertheless taxes assessed, levied and paid. The tax payer may, in such case, be- required to protect his own property from sale. In this case, as is said in Morris’s case: “His title was not imperiled by the sale, and for its protection he was not required to redeem.” We think the demurrer to the petition was properly sustained. Affirmed.