Finley v. Brown

Lowe, Ch. J.

*540

1. Practice : failure to except.

*539 I. It is objected that the court required the plaintiff to elect upon which count of his petition he *540 would go to trial. It is a sufficient reply to this, that the record does not show that the plaintiff ever excepted to this, order of the court, and it is made for the first time here.

2. —waiver, II. The overruling of the demurrer to the answer is the second error relied on. The plaintiff did not stand upon this ruling of the court, but waived it by going to trial on the issues which the replication, by operation of section 2917 of the Revision, put in and made with the answer. Wilcox v. McCune, 21 Iowa, 294 .

3. _ replication. III. It is again objected that the court erred in striking from the files, upon the motion of the defendants, the replication which the plaintiff had put in to the answer. Under sections 2895, 2917, of the Revision, a reply is not allowable except upon the allegation of a counter claim, set-off or cross demand; in all other cases the answer is to be deemed controverted by the adverse party, even though it be new matter, and in avoidance of the plaintiff’s action. The objection, therefore, proceeds upon the idea that the answer is in the nature of a counter claim or cross demand, which clearly is not the case. Whatever infirmity there'is or might be in the defendant’s title (plead as a defense to plaintiff’s right of possession) was open to attack under section 2917 of the Revision, and it follows, therefore, that the plaintiff suffered no prejudice from the ruling of which he complains.

4. tax sake : duplicate deeds. IV. The defendant held two deeds” for the property in question, for the same delinquent taxes. The first was supposed to be informal, and on this account .in -, the collector was prevailed upon to make a second deed instanter, which he did, for the purpose of correcting the supposed mistake. Botli deeds were read in evidence, which is complained of as error. One of these deeds, as to form, is without objection. Conceding *541 the other to be'informal, or even insufficient, the plaintiff could have suffered no prejudice whatever from the act of which he complains.

5. _ non-resident owner. Y. The plaintiff offered to prove that on the 17th of January, 1866, he tendered to the clerk of the District Court of Henry county, the amount of taxes due on said land. This was after the limitation of three years for redemption had expired; but in connection with this he offered to prove that for the last twenty years he had been a citizen of North Carolina; that he was residing there during the late civil war, in consequence of which all civil and political intercourse was suspended between that State and this, which deprived him of all opportunity of paying his taxes or redeeming his property within the time limited by the statute. This evidence was refused, and its refusal is now urged as the last objection made to the proceedings. We fail to perceive upon what principle such evidence could be received or considered. The obligation to pay government taxes rests alike upon the resident and non-resident citizen. This obligation was not lessened by the late rebellion, but rather augmented; nor do we think that the war resulting from the rebellion necessarily had the effect to prevent plaintiff from having a resident agent here to pay his taxes for him.

Affirmed.