Bibbins v. Polk Cnty.

• Decision Date: 19 January 1897
• Citation: Bibbins v. Polk Cnty., 100 Iowa 493, 69 N.W. 1007 (Iowa 1897)
• Parties: BIBBINS v. POLK COUNTY ET AL.
• Court: Iowa Supreme Court

100 Iowa 493

69 N.W. 1007

BIBBINS

v.POLK COUNTY ET AL.

Supreme Court of Iowa.

Jan. 19, 1897.

Appeal from district court, Polk county; W. F. Conrad, Judge.

This action is against Polk county and its board of supervisors and treasurer, to recover $514.88, taxes alleged to have been erroneously exacted from, and paid by, the plaintiff. By consent of parties the case was transferred to and tried in equity, and will be so considered on this appeal. Decree and judgment was entered against the plaintiff, from which she appeals. Affirmed.Guernsey & Baily, for appellant.

W. G. Harvison and James A. Howe, for appellees.

GIVEN, J.

1. Defendants demurred to plaintiff's petition upon several grounds, which in effect are that the matters alleged in the petition do not entitle the plaintiff to any relief. This demurrer was overruled, and the defendants answered that as to the truth of the matters alleged they had neither knowledge nor information sufficient to form a belief, and therefore denied the same. There is no controversy as to the facts of this case, and those shown on the trial are substantially as alleged in the petition. Plaintiff contends that the ruling on the demurrer was an adjudication that a sufficient cause of action was stated in the petition, and that, by answering, the defendants lost all right to object to the sufficiency of the facts alleged to entitle plaintiff to recover. The demurrer was submitted prior to the taking effect of chapter 96, Acts 25th Gen. Assem., taken under advisement, and ruled upon afterwards. That chapter provides: “When a demurrer shall be overruled and the party demurring shall answer or reply, the ruling on the demurrer shall not be considered as adjudication of any question raised by the demurrer.” Counsel dispute as to whether this chapter applied to the case at the times the demurrer was submitted and ruled upon, but the real question is whether it applied to the case at the time it was finally submitted. The statute is as to the remedy. It was in force when the case was decided on its merits, and said to the court, in unmistakable terms, that “the ruling on the demurrer shall not be considered as an adjudication of any question raised by the demurrer.” In the absence of this statute, the court was not concluded by the ruling on the demurrer. See Richman v. Supervisors, 77 Iowa, 524, 42 N. W. 422.

2. The tax sought to be recovered in this case is the same as that considered in Bibbins v. Clark, 90 Iowa, 230, 57 N. W. 884, and 59 N. W. 290, and the facts alleged and proven are the same as therein stated. We need not restate these facts at length, but simply the following, which will be sufficient for an understanding of the questions to be considered: This tax upon the personal property of W. W. Clark & Co. became a lien upon certain real estate belonging to W. W. Clark, and, the tax not being paid, the real estate was sold by the treasurer, and a certificate given to the purchaser. The plaintiff held a mortgage upon said real estate, subject to a prior mortgage to the Northwestern Mutual Life Insurance Company, both of which mortgages were liens upon said property prior to the time said tax became a lien thereon. Plaintiff foreclosed her mortgage, and purchased the property at the execution sale, receiving the sheriff's certificate of the purchase. Thereafter, Clark having failed to pay the first mortgage, suit was brought to foreclose it. “Plaintiff, in order to obtain a renewal and extension of said mortgage, and to prevent a foreclosure thereof and loss and expense therefrom, caused to be paid to the holder of said tax-sale certificate the sum of $457.23, being the amount necessary at that date to redeem from said tax sale, and caused said tax-sale certificate to be assigned to the holder of said mortgage by whom said certificate was held as collateral, and additional security until August 15, 1892, when plaintiff caused redemption to be made from said tax sale; the amount necessary to redeem from said tax sale at said date being $514.88.” This claim was duly presented to the defendant board, and payment refused, whereupon, on March 21, 1894, and after Bibbins v. Clark had been reversed, this action was commenced.

3. Section 870 of the Code, under which this action is brought, is as follows: “The board of supervisors shall direct the treasurer to refund to the tax payer any tax or any portion of a tax found to have been erroneously or illegally exacted or paid with all interests and costs actually paid thereon, and in case any real property subject to taxation shall be sold for the payment of such erroneous tax, interest or costs as above mentioned, the error or irregularity in the tax may at any time be corrected as above provided, and shall not affect the validity of the sale, or the right or title conveyed by the treasurer's deed, if the property was subject to taxation for any of the purposes for which any portion of the taxes for which the land was sold, was levied, and the taxes were not paid before the sale, and the property had not been redeemed from sale.” In Bibbins v. Clark, supra, it was held that this tax was a lien upon the real estate in question. Being a lien, the county did not act erroneously nor illegally in exacting payment, and has not received more than was legally due and owing to it. The question is whether this payment of the tax was “erroneously or illegally exacted or paid.” It is not disputed that if plaintiff paid the tax voluntarily, without any obligation or necessity for so doing, she is not entitled to relief. It is contended on her behalf that because of the facts concerning the mortgages, and the sale of the entire property instead of Clark's equity therein, it became necessary...