Scharffbillig v. Scharffbillig

The plaintiff alleges that he was in possession of the land described in the complaint for several years, claiming title thereto as owner. During this time he paid the taxes levied thereon for those years. But, in an action brought by the defendant to contest his title, it was finally adjudged and determined that the plaintiff was not the owner or entitled to the possession, but that *350the defendant was entitled to the same. He alleges that he paid the taxes through mistake, in the full belief that he was the owner of the land, and by his complaint he seeks to recover the same of defendant.

Upon the facts stated the action cannot be maintained. The taxes were voluntarily paid by plaintiff as owner, and at his own risk. It is possible he might have enforced his claim thereto upon a proper showing, under the occupying claimant’s act, but not in this action. He held the land adversely, and there was no privity between the parties. The taxes were not paid by him as occupant under the defendant, or by the consent, express or implied, of the latter, but to protect his own interest as an adverse claimant. The statute (1878 G. S. ch. 11, § 103) was obviously not intended to apply to such a ease.

2. The second cause of action is equally untenable. Plaintiff, it appears, claimed under a school-land certificate, and he seeks to recover of the defendant the consideration money paid by him to the state; but it does not appear what the nature of defendant’s title was, or how derived, or that the money paid was paid for his benefit. It stands on the same footing as the claim for the taxes.

The demurrer was properly sustained.

Order affirmed.

(Opinion published 53 N. W. Rep. 713.)