There is a limit to state power to give such a lien which will be understood on a perusal of the chapter respecting the cure of defects in tax proceedings. It was there shown that if a tax was merely irregular, either in its assessment or levy, or in the steps taken for its enforcement, it was competent for the

And as to limitation of suit to enforce the lien, Brown v. Fodder, 81 Ind., 291; Bowen v. Striker, 87 Ind., 317. In Iowa, if a tax deed is set aside, the tax purchaser is entitled to be reimbursed by the owner such sum as would have been necessary to discharge the land from taxes if they had not been paid by the purchaser. Besore v. Dosh, 43 Ia., 211; Sexton v. Henderson, 45 Ia., 160; Miller v. Corbin, 46 Ia., 150; Springer v. Bartle, 46 Ia., 688. He is also entitled to be reimbursed for taxes subsequently paid by him. Light v. West, 42 Ia., 138; Thompson v. Savage, 47 Ia., 522. But he must observe the statutory conditions on the subject. Kennedy v. Bigelow, 43 Ia., 74. As to how the right to reimbursement may be affected by subsequent transfers of title, see Forey v. Bigelow, 56 Ind., 381.

Where the title to land is in doubt, if one claimant pays taxes and afterwards is adjudged to have no title, he cannot recover from the other the amount so paid. Garrigan v. Knight, 47 Ia., 525.

As to the right to reimbursement in Louisiana, see Fix v. Succession of Dierker, 30 La. An., 175; Person v. O'Neal, 32 La. An., 228; Shannon v. Lane, 33 La. An., 489; Davenport v. Knox, 34 La. An., 409; Hickman v. Dawson, 35 La. An., 1086. And in Texas, see Cantagrel v. Von Lupin, 58 Tex., 570. And in Mississippi, Ingersoll v. Jeffords, 55 Miss., 37; Cogburn v. Hunt, 56 Miss., 718; S. C., 57 Miss., 681. And in Wisconsin, Hart v. Smith, 44 Wis., 213. In Michigan the lien must be enforced in a special proceeding. Weimer v. Potter, 42 Mich., 569; Ellsworth v. Freeman, 43 Mich., 488. The payment of taxes is not proved by the mere receipt in these cases. Ibid. The right to the lien will be cut off by subsequent tax sales to others. Robbins v. Barron, 33 Mich., 124; S. C., 34 Mich., 517. In Kansas a lien may be established in an action of ejectment in which the holder of the tax title fails to recover. Russell v. Hudson, 28 Kan., 99; Arn v. Hoppin, 25 Kan., 707; Fairbanks v. Williams, 24 Kan., 16. But not in a suit to quiet title, the statute giving other relief in that case. Corbin v. Young, 24 Kan., 198. See, further, Saline Co. Com'rs v. Geis, 22 Kan., 381; Lincoln Co. Com'rs v. Faulkner, 27 Kan., 164; Richards v. Wyandotte Co. Com'rs, 28 Kan., 326.

If the tax was vicious in its inception there can be no lien. Early v. Whittingham, 43 Ia., 162; Nichols v. McGlathery, 43 Ia., 189; Roberts v. Deeds, 57 Ia., 320; Harper v. Rowe, 53 Cal., 233. The same is true if by law the land was exempt from taxation. Sully v. Poorbaugh, 45 Ia., 453; Gaither v. Lawson, 31 Ark., 279; Jeffries v. Clark, 23 Kan., 448; Hoffmire v. Rice, 22 Kan., 749.

In Nebraska the purchaser at a tax sale may pay all subsequent taxes and add the amount to his lien. Schoenheit v. Nelson, 16 Neb., 235; Holmes v. Andrews, 16 Neb., 296, and cases cited. This applies to counties as purchasers also. Otoe Co. v. Brown, 16 Neb., 394.

legislature to provide for its reassessment in a subsequent year, while if it was illegal, the power to reassess would be wanting. This principle is applicable here, and whenever the state would have power to reassess, it may more directly, if the land has been sold for the irregular tax, reach the same end, by giving the purchaser a lien on the land for the sum justly payable. Such a lien is a creature of the statute, and governed and limited by it.

CHAPTER XVII.

PROCEEDINGS AT LAW TO RECOVER LANDS SOLD FOR TAXES.

General rule. Where lands have been sold and conveyed in satisfaction of delinquent taxes, the claims of the respective parties to the title are to be determined in the customary methods. The purchaser, if he finds the land occupied, may bring ejectment in the common law courts to obtain possession, and if, on the other hand, he finds the land unoccupied and takes possession without suit, the original owner may have the like remedy against him. Though the tax deed be made by law prima facie evidence of title in the purchaser, it is not competent by statute to provide for putting him in possession forcibly and without a judicial hearing. No entry is necessary before bringing suit, but if the statute requires the service of written notice by the tax purchaser on the adverse claimant for a certain length of time before instituting proceedings to recover, the notice is a condition precedent, and the giving of it must be proved by competent common law evidence.3

Special rule for tax cases. It has in some states been thought proper to restrict the right to contest a tax title to such persons as can show an apparent title in themselves derived either from the state or from the United States. How far it is competent for the legislature to impose such a restriction, it

1 Calhoun v. Fletcher, 63 Ala., 574; Fischel v. Mercier, 32 La. An., 704; Mayenno v. Millaudon, 32 La. An., 1123. In Illinois a tax purchaser on recovering in ejectment does not obtain the growing crops. Brock v. Leighton, 11 Ill. App., 361.

2 But in Wisconsin the tax deed must be first recorded. Hewitt v. Butterfield, 52 Wis., 384; Hewitt v. Week, 59 Wis., 444. Probably this is the rule in some other states. And doubtless in any state it would be held essential that it be executed with the statutory formalities. See Bowen v. Striker, 100 Ind., 45. In Pennsylvania, if the land was sold as unseated, the tax purchaser must prove that it was so or his purchase will be void. Miller v. McCullough, 104 Pa. St., 624. Where the certificate of purchase or the deed is made prima facie evidence of title, it is not necessary that the holder should prove that there was no redemption. Stewart v. Coulter, 31 Minn., 385.

People v. Walsh, 87 N. Y., 481.

is perhaps not important now to inquire, as a title presump. tively derived from the state or the United States is shown when a prima facie case sufficient under common law rules is made out, and the right to make the contest under the statute is thereby established.1

Repayment to Purchaser. It has also been sometimes thought politic and just to impose upon the owner of the original title an obligation to do what is equitable under the circumstances as a condition either to the institution of any suit as plaintiff for the recovery of the land or to any judgment in his favor grounded on the invalidity of the tax title. One of these, imposed in some states, is that, before instituting suit, the original owner shall bring into court, for conditional payment to the tax purchaser in case his title shall be held invalid, the amount for which the land was sold, with interest. Generally it is required also that some further sum shall be added which will be in the nature of a penalty for failure to pay the tax in due

season.

It has been decided in one case that an act which provided that "no person shall be permitted to institute any proceedings to set aside any assessment or special tax, hereafter levied or assessed upon any lot or tract of land, or to set aside any deed executed in consequence of non-payment of such taxes, and the sale of the premises therefor, unless such person shall first pay or tender to the proper party, or deposit for his use with the treasurer, the amount of all state, county and city taxes that may remain unpaid upon such lot or tract, together with the

1Gamble v. Horr, 40 Mich., 561; Hintrager v. Kline, 62 Ia., 605. See Chandler v. Keeler, 46 Ia., 596. In a suit to confirm a tax title, the question whether the United States patent was not void for fraud cannot be gone into. Chrisman v. Currie, 60 Miss., 858. In Louisiana a tax title cannot be assailed collaterally by one claiming under a mortgage from the former owner, but only in a direct suit for the purpose. Ludeling v. McGuire, 35 La. An., 893, citing Coco v. Thieneman, 25 La., 237: Hickman v. Dawson, 33 La. An., 441, and other cases. Nor can a creditor of the former owner attack it collaterally if the tax purchaser is in possession. Ludeling v. McGuire, supra.

2 Also the taxes which the purchaser has subsequently paid, if any. But it has been held in Missouri that, if one without color of title pays taxes on land, the owner cannot be compelled, as a condition to recovery of possession from him, to refund the amount paid. Napton v. Leaton, 71 Mo., 358.

interest and charges thereon," was void as being inconsistent with that clause in the constitution that declares that every person "ought to obtain justice freely and without purchase.' If this statute were confined to the requirement of a payment or tender of legal taxes and costs for which the sale may have been made, the soundness of the conclusion might well be made a question. No one is denied a remedy in the courts when he is merely required to submit to a condition which, under the circumstances, is reasonable. Conditions to the assertion of a right in court are imposed in many cases, none of which are supposed to work to the detriment of justice. The requirement of security from a plaintiff in replevin or attachment are instances, and the payment of taxes upon the legal process or upon the entry of the suit is another. Courts of equity, on general principles of right, are frequently in the habit of imposing conditions where one seeks in equity to restrain a tax, only a part of which is illegal. The authority of the legislature over the whole subject of legal remedies is very ample, and it is not to be supposed that any general declaration of the right of the citizen to his day in court was intended to preclude the legislature from exercising its authority to require him to do equity when he did come. Other cases have distinctly affirmed the right to require payment of the taxes as a condition precedent to a recovery of the land from the tax purchaser, when it was proposed to do so on the ground of the invalidity of the tax proceedings.2

1 Conway v. Cable, 37 Ill., 82. In Nebraska it is held that a short statute of limitations for the protection of tax purchasers should not apply to deeds given before its passage. Sutton v. Stone, 4 Neb., 319.

2 Tharp v. Hart, 2 Sneed, 569; Glass v. White, 5 Sneed, 475; Craig v. Flanagin, 21 Ark., 319; Pope v. Macon, 23 Ark., 644; Coonradt v. Myers, 31 Kan., 30; Belz v. Bird, 31 Kan., 139; Lombard v. Antioch College, 60 Wis., 459. Compare Wakely v. Nicholas, 16 Wis., 588. In Henderson v. Staritt, 4 Sneed, 470, it was decided that the plaintiff in ejectment to recover land sold for taxes may show that any necessary proceeding subsequent to the judgment and order of sale, such as the advertisement of the sale itself, was irregular and void, without first being required to show that the taxes had been paid anterior to such judgment and order of sale. A constitutional provision that "appeals and writs of error shall be allowed from the final determination of county courts as may be provided by law" is not violated by a statute which, in tax cases, requires the appellant to deposit with the county treasury the amount of the judgment. Andrews v. Rumsay, 75 Ill.,