Odendahl v. Rich , 112 Iowa 182 ( 1900 )

Sherwin, J.

The plaintiff, and those from whom he holds assignments, were the owners of lands situated within the independent district of Carroll, in Carroll county. In 1887 and 1888 they attempted to have the territory embracing their land put into the district township of Grant. In this they failed and afterwards brought an action to compel this transfer thereto, which was prosecuted to a successful termination in September, 1895. During the intervening time the land was assessed as belonging to the independent district of Carroll. The taxes levied thereon were paid, and tlias action is to recover the amount paid in excess of what would have been required had the land been transferred to the district township of Grant and assessed as a part thereof. The defendants demurred to the petition, putting in issue the statute ■ of limitations, and the general right of the plaintiff to recover under tlie facts alleged. The question as to whether the taxes were paid under protest was made a distinct issue, not covered by the demurrer, and was tried as one of fact by the court. The demurrer was sustained generally, and the finding of fact by the court was against the plaintiff.

The land in question was subject to taxation somewhere. It could make no possible difference to the owners whether it was taxed in the independent district of Carroll or in the district township of Grant, if the rate of taxation had been the same in both. Complaint was made that it was burdened with a larger tax by its location in the former district. The taxes levied and collected were not illegal. The most that can be said is that they were excessive, and this was what was continually claimed by the plaintiff and his assignors.

The question as to whether voluntary payment of the taxes levied was made was determined by the district court adversely to plaintiff, after hearing the testimony on this branch of the case. This finding was fully justified by the evidence. This case, then, is clearly within the rule governing the voluntary payment of taxes, and the plaintiff, having failed to prove that they were not so paid caimot recover. Lindsey v. Boone County, 92 Iowa, 86; Espy v. Town of Fort Madison, 14 Iowa, 226; Cooley, Taxation, 809; 18 Am. & Eng. Enc. Law, 220. Several other questions arising under the ruling on the demurrer, and involving the statute of limitations, are argued, but, as the views presented above dispose of the case, we do not discuss them. ■ — Aeeirmed.

Granger, O. J., not sitting.