The Iowa plain dealer. [volume] (New Oregon, Howard County, Iowa) 1867-1895, 1872-11-08
! lllportaOt Tax Tii,e De cision

The case Of A. n. Lancaster Vs.
hucius D. Fisher in the United States
Circuit Court was tried at the last May
Term, A. u. 1872, before His Honor
Judge Love. 1t was all action Of right
brought to recover certain land in
Grunly county.
On the trial it appeared in evidence
that the land had been sold for taxes
to person who after he got tax deed,
sold the land to the defendant. Then
the plaintiff bought the original or
patent title aud commenced this suit
to recover the land. The evidence
showed that there was q fraudulent
combination or ring among the bidders
at the tax sale, and that the tax sale
was fraudulent, and so the jury found
by their verdict. But the plaintiff did
not provo that he had paid all the taxes
due on the land or rendered the taxes
for which the land had been sold. There
upon the Court held by Sec. 7s4 Of the
Revision, the payment Of such taxes
was condition precedent to the COM
mencement of All, action to "question"
the tax title, and that Notwithstanding
the fraud in the tax sale, the plaintiff
could not recover; and directed judy
ment for the defendant.
The Court also decided that mas
much as the defendant had purchased
the land in good faith, without know
ing the fraud, at the tax sale, his title
was good, and would be sustained in
preference to the original title, even if
the plaintiff had rendered all taxes be-
fore he commenced the suit.
The plaintiffs counsel then moved
for new trial, which was refused. tie
then appealed from the decision of Jud-
&c Love, and applied to the court in
full bench, to set aside the Judgment
and grant new trial. October Odd,
1872. the cause was ably argued for
! the plaintiff by Mr.. Clark and J. S.
Polk, and for the lcfendan. by c. II.
Catch, before Judge Dillon and Judge
Love, and yesterday the decision Of the
Court was announced, affirming and
fully sustaining the opinion ofthe Court
made Oh the trial, ana holding that in
no event could the plaintiff commence |
an action to set aside tax title with !
out first paying the taxes; that tender
of taxes after suit is brought would
avail nothing; that the statute was per-
! cmptory,it must be done before the tax !
title could be questioned, ''and this
provision was highly equitable.
TIE Court also held that a fraudu-
lent tax title vas not absolutely void, !
but only yvilabie, and if the tax title
purchaser sells the tax title to a thi I'd
person, who buys it without knowing
of the fraudulent sale, he is bona fdc
purchaser, and his title will be preferr-
cd and protected in prcieronoe te -.l.-.
Of the original owner, who by his neg
lcct and default omitted or refused to
pay his taxes, which it was his duty to
10.
It follows from this decision that as
/ fraudulent tax deed is not void, but
simply voidable, it cannot be set aside
,r avoided in an action OF right Or at
aw, but the SUIT must be commenced
n equity for that purpose, and before
he taAtitlc is sold to a bona fidc pur-
chaser. These points have never been
directly raised or decided in the State
courts, and are highly important, but
ire in harmony with the tenor and
spirit Of the decisions of our State
courts. There seems now but very
title if any chance to set aside tax
title, and it bchoovcs every owner Of
and to examine his tax receipts and
see that he has paid his taxes.-[Des
Moincs Republican.