66 4702. Appeal.

1. RECOVERY OF TAXES. A cause of action accrues against a county for
the recovery of illegal taxes paid at the time of their payment, and the
statute of limitations runs against the claim from that time. Beecher
v. The County of Clay et al., 140.

2.

: WANT OF KNOWLEDGE OF ILLEGALITY. The fact that the per-
son paying such taxes is not aware of their illegality will not prevent
the running of the statute against his claim. Id.

See DoWER, 1.

PRACTICE, 11.

TAX SALE AND DEED, 1, 4, 11.

SUPREME COURT.

1. RULE REGULATING APPEALS: JURISDICTION. Rule 12 of the Supreme
Court, providing that appeals in cases involving less than one hundred
dollars will only be considered when the certificate of the trial judge
states the question of law upon which an opinion is desirable, is not
objectionable upon the ground that it limits the jurisdiction of the court.
Wilson v. Iowa County, 339.

1. MUNICIPAL BONDS: COUNTY INDEBTEDNESS. The validity of negoti-
able bonds of a county issued in satisfaction of judgments, in the hands
of innocent holders for value, cannot be questioned by showing that the
judgments were rendered upon warrants issued in excess of the consti-
tutional limitation of five per cent, and a tax levied to pay the principal
and interest of such bonds may be enforced. Following The S. C. &
St. P. R. Co. v. Osceola County, 45 lowa, 163. BECK, CH. J., dissent-
ing. The S. C. & St. P. R. Co. v. Osceola County, 26.

2.

Bonds issued by counties under the provisions of chap-
ter 87, laws of 1872, are payable in all respects as is provided in chapter
1, title IV of the Code. It is the duty of the board of supervisors to
levy the bond tax as there provided for their payment, and such tax is
not limited by section 810 of the Code to three mills. Id.

3. LAND OWNED BY CHURCH: BURYING GROUND. Where out of forty
acres of land alleged to be held by a church as a burying ground, only
one acre was actually used for burial purposes, and the remainder as
farm land, it was held that the remaining thirty-nine acres were subject
to taxation. Mulroy v. Churchman et al., 238.

4. PUBLIC LANDS: RAILROAD GRANT. Where no conflicting claim is made
to lands inuring to a railroad company under a congressional grant they
become taxable from the time they are earned by the company, though
not certified by the land department until afterward. Facts considered
and held insufficient to sustain the claim of a company to exemption on
the ground that the certificate was withheld by reason of a conflicting
claim to the lands. The Iowa Railroad Land Co. v. Fitchpatrick, 244.
5. FOR MUNICIPAL PURPOSES: FARM PROPERTY. Whether or not farm
property situated within the limits of a city or town is subject to taxa-
tion for municipal purposes is a question which must be determined upon
the peculiar facts in each case. Upon the facts of the present case it
was held that certain farm property in the city of Des Moines was inci-
dentally enhanced in value by the improvement of the streets of the city,
and was properly taxed for city purposes. Brooks et al v. Polk County,
460.

See ESTOPPEL, 1.

MUNICIPAL CORPORATIONS, 1, 2.

TAXES.

1. TREASURER'S RECEIPT: DEPUTY COLLECTOR. The receipt of a deputy
collector of delinquent taxes has the same force and effect as that of the
treasurer. Jones v Welsing, 220.

2. RECOVERY OF: MISTAKE OF FACT. Certain lands were certified to
defendants under a railroad grant, and while holding such title they
paid the taxes levied thereon. In an action in equity to quiet title it
was adjudged that the lands passed to plaintiff's grantor under the
prior swamp land grant; whether or not they passed under such grant
was largely a question of fact, depending upon the character of the
lands: Held, that the plaintiff should be required to reimburse the
defendants for the taxes paid prior to the determination of such ques-
tion. The American Emigrant Co. v. The Iowa Railroad Land Co.
and The C. R. & M. R. R. Co., 323.

See DOWER, 3.

MORTGAGE, 12.

STATUTE OF LIMITATIONS, 1, 2.
TAX SALE AND DEED, 3.

TAX SALE AND DEED.

Where prairie

1. SALE: STATUTE OF LIMITATIONS: UNOCCUPIED LANDS.
land remains unoccupied for five years after the execution of a tax deed
thereto, the possession is deemed to follow the tax title, and the holder
thereof may maintain an action to protect such possession. Following
Moingona Coal Co. v. Blair, 51 Iowa, 447. BECK, CH. J., and ROTH-
ROCK, J., dissenting. Lewis v. Soule et al., 11.

2. --: FOR LESS THAN ENTIRE TRACT: UNDIVIDED PORTION. A pur-
chaser at tax sale who offers to pay the taxes for less than the whole of
a tract of land, under section 876 of the Code, acquires an undivided
interest in the whole tract. Brundige v. Maloney, 218.

3.

PAYMENT OF TAXES AFTER SALE: MANDAMUS. After the sale
of land for taxes by the treasurer, the deputy collector received the
taxes from the owner and gave his receipt therefor, both being ignorant
of the sale; upon discovery of the mistake the treasurer tendered to the
holder of the certificate of purchase the return of his money with ten
per cent interest, which was refused. The time for redemption having
expired, held, that the tax purchaser was entitled to a writ of mandamus
to compel the issuance to him of a treasurer's deed. Jones v. Welsing,
220.

4. --: STATUTE OF LIMITATIONS. The statute of limitations will not
bar an action to quiet title by the holder of a tax deed who is in posses-
sion. Wright v. Lacy et al., 248.

5.

6.

7.

NOTICE TO REDEEM: SERVICE. For the purpose of service of
the notice required by section 894 of the Code, the owner of the legal
title to land will be deemed to be in possession, in the absence of evi-
dence to the contrary. Hall & Spencer v. Guthridge, 408.

:

Such notice may be served by the holder of the
certificate of sale in person. Id.

:

:-. The provision for service upon the person in
whose name the land is taxed has reference to the person in whose
name it is taxed at the time of the service, and not at the date of the
sale. Id.

8. DEED: UNOCCUPIED LANDS: POSSESSION. Where lands remain unoccu-
pied for five years after the execution of a tax deed thereto, or are
unoccupied at the expiration of that time, the possession is construct-
ively in the holder of the tax title. Goslee r. Tearney et al., 455.

9. SALE: VALIDITY: FAILURE TO ADVERTISE. The fact that the descrip-
tion of certain lands was omitted by mistake from the list of lands
advertised for sale by the treasurer for delinquent taxes will not invali-
date the sale when the taxes were in fact delinquent. Shawler v.
Johnson, 472.

10.

11.

TIME OF: DEED IS CONCLUSIVE EVIDENCE. The time of sale
is not jurisdictional, and the tax deed is conclusive evidence of a com-
pliance with the law in that respect. Id.

―: ACTION AFTER FIVE YEARS: STATUTE OF LIMITATIONS. The
holder of a tax deed who is in possession may maintain an action to
quiet title after the expiration of five years from the execution of his
deed, and will be protected by the statute of limitations from any
defense by the former owner that would be barred as an affirmative
cause of action. Id.

See WILL, 1.

TOWNSHIPS.

1. NOT CORPORATIONS. Under the statutes of this State civil townships
are not corporations, but merely legal subdivisions of a county for gov-
ernmental purposes, and cannot sue or be sued. The Township of
West Bend et al. v. Munch et al., 132.

TRUST.

See CONVEYANCE, 2.

USURY.

1. NATIONAL BANKS: JURISDICTION.
Where a national bank loans money
upon a usurious contract only such penalties can be enforced as are
provided in the national banking act. Without regard to the question
whether or not the state courts would have jurisdiction of an original
action to enforce those penalties, when the bank sues upon such con-
tract in a state court the defendant has the right to maintain the plea
of usury as a defense in the same court. The National Bank of Win-
terset v. Eyre et al., 114.

2. PROMISSORY NOTE: RENEWAL.

A note given in renewal of one which

is usurious, and covering the usurious interest, is itself affected with
usury although bearing but the legal rate of interest, and it cannot be
purged of such usury by having the amount credited thereon as a pay-
ment, without the concurrence of the maker. Id.

3. AS A DEFENSE: WHEN NOT AVAILABLE. A maker of a note and mort-
gage who afterward sells the mortgaged property, the purchaser assum-
ing the mortgage debt, cannot interpose the defense of usury in an
action of foreclosure in which no personal judgment is asked against
him; nor will the fact that an action is pending in which he seeks to
set aside the conveyance by him as fraudulent and void authorize him
to make such defense. The National Life Insurance Co. v. Olmsted
et al., 354.

See PROMISSORY NOTE, 1.

VENDOR AND VENDEE.

1. CONVEYANCE: LIEN. Where a conveyance expressly provided for the
payment by the vendee, as a part of the consideration, of a judgment
which was a lien upon the property, and excepted such judgment from
the covenants of warranty, it was held that the land was charged with
the payment of the judgment in the hands of any one claiming through
such conveyance, and that the grantee of other lands of the judgment
debtor upon which the judgment was a lien, who was compelled to pay
such judgment to protect his lands, was entitled to enforce the same
against the land specially charged with its payment. Barr v. Patrick,
704.

2.

ADJUDICATION. A decision adverse to such grantee, in an action
brought by him to compel the holder of the judgment to resort in the
first instance to the land specially charged, would not be an adjudication
of his rights as between him and the owner of such land, who was not
a party. Id.

See CONTRACT, 3.

CONVEYANCE.

EVIDENCE, 9.

FRAUDULENT REPRESENTATIONS, 3.
VENDOR'S LIEN.

VENDOR'S LIEN.

1. WAIVED BY TAKING MORTGAGE.

A vendor's lien is waived by taking
a mortgage upon the property sold to secure the purchase-money.
Stuart v. Harrison et al., 511.

2. REQUISITES OF. A vendor of land, since section 1940 of the Code was
in force, who does not reserve a lien for purchase-money unpaid by con-
veyance or other recorded instrument, is not entitled to a lien after a
conveyance by his vendee, although the purchaser had notice of his
claim. Rotch v. Hussey et al., 694.

See CONVEYANCE, 3, 4.

MORTGAGE, 2.