Goodnow v. Stryker

Adams, J. I. In Goodnow v. Moulton, the taxes were paid by the Iowa Homestead Co., and at a time when that „ faudmjay-Relief oíde3: recovery^' from owner. company claimed to be the owner of the land, and ^ was that the claim was made in good faith, though its validity was disputed by ths defendant. Mr. Justice Seevers, in his opinion in cage^ ga^. «When the taxes were jiaid, it was believed by said company that it was the owner of the lands, under the act of congress known as the railroad grant.” The defendant contends that the 'case at bar differs from that case, becaiise the certification of the lands under which the plaintiff claims was suspended until April, 1863, and, the taxes paid being for the years 1861, 1862 and 1863, the plaintiff should not be heard to say that his assignor paid the taxes in good faith. The taxes, however, it appears, were not paid until after April, 1863. Possibly the defendant had in mind that the assessment of the taxes for 1861 and 1862, being made within the time the certification was suspended, were invalid, but he does not raise such point in his argument, and we do not, therefore, consider it. So far, then, as the circumstances are concerned under which the taxes were paid, we have to say that we see nothing in them to distinguish [223] tbe case from Goodnow v. Moulton; and it follows that we are justified in bolding that there was an implied promise on the part of the defendant to reimburse the plaintiff’s assignor. II. The defendant alleges that the plaintiff is barred by a prior adjudication in an action in which the Iowa Homestead 2. pormeR Sporfwhonf binding. Co. was plaintiff, and the Des Moines Navigation & R. R. Co., and the present defendant, Stryker, and others, were defendants, the decision in which case is reported in 17 Wallace, 153. It appears that the lands on which the taxes were paid were a part of the lands in controversy in that case, having been conveyed before the commencement of the action by the plaintiff’s assignor, by deed of warranty, to the Iowa Homestead Co., the plaintiff in that action. It appears, also, that the Iowa Homestead Co., having paid certain- taxes on the same land, prayed that the defendant, Stryker, be decreed to reimburse it for such payments, if it should be decreed that he was the owner of the land. The defendant, Stryker, was decreed to be the owner of the lands, but no recovery was allowed against him for the taxes paid. Now, while the taxes sought to be recovered in the case at bar were no part of the taxes sought to be recovered in that case, and neither the plaintiff nor his assignor was a party to that action, yet it is said that the adjudication is sufficient to bar a recovery in this ease. It is, perhaps, not to be denied that, if the court correctly held in that case that the Iowa Homestead Co. was not entitled to recover for taxes paid, it would follow as a matter of law that the plaintiff in this case is not entitled to recover; but, since the decision in Goodnow v. Moulton, we cannot follow the decision in Iowa Homestead Co. v. Des Moines Navigation & R. R. Co. et al. as authority, nor, so far as the point is concerned which we are now considering, is it claimed that we should. The claim is that the taxes in question were actually covered by the adjudication in that case. In our opinion, this claim cannot be sustained. > The taxes in question were not only no part of the taxes sought to be [224] recovered in that action, but they were not paid by the plaintiff in that action as in Goodnow v. Litchfield, 59 Iowa, 226. They were paid by the Dubuque & Sioux City R. R. Co., and neither it nor its assignee, the present plaintiff, was a party to that action. The defendant contends that the Dubuque & Sioux City R. R. Co. was substantially a party to that action, because the plaintiff in the action claimed a part of the lands by deed of warranty from the Dubuque & Sioux City R. R. Co., and notified that company of the pendency of the action. The effect, however, of such notification would be only to bind the Dubuque & Sioux City R. R. Co. by the adjudication in respect.to title. In that case the Dubuque & Sioux City R. R. Co. was interested by reason of its deed of warranty, but it had no interest in the taxes sought to be recovered. So far as the issue was concerned involving a right of recovery for the taxes, it was in no possible sense a party. The adjudication in that case, then, does not operate as a bar in this. III. The defendant pleads the statute of limitations. lie avers that he is a resident of the state of New York, and that , 3. STATUTE Of stetíites°con-strued. in that state action upon contract not expressed r . 1 ^11 siting is barred in six years. He relies, as We understand, upon section 2746 of the Revision, which provides that, “when a cause of action has been fully barred by the laws of the country where the defendant has previously resided, such bar shall be the same defense here as though it had arisen under the provisions of this chapter.” But in this case the cause of action arose in this state; and in 1870 the statute cited was amended so as to make it inapplicable where the cause of action arose in this state. Chap. 167 of the Laws of 1870. ’ Unless, then, the action became' barred before the amendment, it did not become barred under the statute relied upon. The payments appear to have been made December 9, 1863, January 20, 1864, and October 31, 1866, respectively. But we do not think that a cause of action accrued upon each payment at the time it was made, nor upon all at the time the last one was made. The implied [225] promise upon wbicli the action is based arose by reason of the circumstances. Goodnow v. Moulton above cited. One very important circumstance was that the title was involved in se- „ • , Saseticín con-tmgency. rious litigation, which was not terminated in the defendant’s favor until 1873. ¥e do not think defendant’s implied promise could be regal-ded as absolute. lie certainly never promised to pay these taxes in case the title should be adjudicated to. be in the Iowa Homestead Co., and no one had any reason to. suppose that he intended to incur any such liability. The most that can be said, then, in regard to the defendant’s implied promise, is that it was based upon a contingency; and, being so, it was not enforcable until the contingent event had happened. "We think that the cause of action did not arise-until the termination of the litigation by which the title was. adjudged to be in the defendant. If the Homestead Co. had before the final decision abandoned the litigation and conceded the title to be in the defendant, it may be that a cause of action would then have accrued. We do not say that a. final decision was necessary. We merely say that we do not think that the defendant could be understood as promising-that he would pay the taxes sooner than the title was assured to him, either by adjudication or concession. Such being our view, it appears to us that the cause of action did not accrue until 1873, which was after the amendment; and, the defendant being a non-resident, the action is not barred. We think that the plaintiff is entitled to recover the amounts paid, with interest thereon from the time of payments respectively, and to have the same decreed a lien upon the land. Reversed.