By the Court,
Downer,, J.The respondent presented to the appellant an account or claim for moneys paid at tax sales for tax certificates, and for deeds on some of them, and recording the same, and interest on the sums paid, and asked that the amounts so paid, with interest, might be refunded to him, for the reason that the sales were void. The board of supervisors appointed a special committee to investigate and report upon this claim. The committee reported advising the board of supervisors to reject the account. The board adopted the report, and Warner took his appeal to the circuit court, where a trial was had, which resulted in a verdict and judgment in favor of Warner, from which the board of supervisors has appealed to this court.
On the trial in the circuit court the following admission was made : “ The defendant admits as testimony in this action, that the county treasurer received of the purchaser or plaintiff, as payment for his bid at the tax sales at which the lands in question were sold for taxes, five per cent, over and above all taxes, charges and interest properly belonging thereon, and that said five per cent, was included in the amount specified in the tax certificates issued on sueh sales.” We have decided at the present term in the case of Kimball v. Ballard, [ante, p. 601] that such tax sales are void. The first error alleged by the defendant is, that the plaintiff’s account has not been “ disallowed” by the board, within the meaning of section 40, chap. 13, R. S. We think, however, that the report of the committee advising the rejection of the account, and the adoption of that report by the board, was a disallowance by the board.
The next error alleged is, that the deeds executed on the tax certificates to Warner had not been by him re-delivered to *614be cancelled, according to the provisions of sec. 27, ch. 22, Laws of 1859. Warner testified: “ I presented the claim in dispute to the county board, January 12th, 1863. I also presented tax certificates and deeds to be cancelled.” It appears to us that all he was required to do, to entitle him to the repayment of the money and interest, was to present the deeds and certificates for delivery and cancellation on the payment to him of the money. The payment of the money and the redelivery of the deeds, according to the provisions of sec. 27, should be simultaneous acts. He was not obliged to leave the deeds for cancellation, or to cancel them, unless he obtained the money. But it is urged by the appellant that he should have brought the deeds into the circuit court and tendered them there at the trial, and cancelled them or offered to cancel them, otherwise he was not entitled to recover. There are no pleadings in cases of appeal from the board of .supervisors. The account or claim presented stands as a complaint, and yet the plaintiff must prove it. The complaint cannot, as in other cases, be taken as true if not denied by answer. If the parties had made up an issue in form, it might depend upon the pleadings whether or not the deeds should have been brought into the circuit court. As far as the record shows, this objection is first raised in this court; and on that account cannot be looked upon with favor. If it had been made in the court below at the trial, the plaintiff might easily have brought the deeds into court for cancellation on the payment of the judgment recovered.
We are of the opinion that all the plaintiff was required to do after tender of the deeds, was to have them ready on payment of the money and a demand therefor by the defendant. '
It is contended that the record shows that a large part of the lands conveyed by the tax deeds are wild or unoccupied lands; that each deed is regular on its face ; and that under the decisions of this court (three years having elapsed since the recording of the deeds or some of them), the title of the plaint *615iff to the lands or some of them may be perfect; also that he may already have sold and conveyed the lands or some of them. The answer to this is, that the record does not satisfactorily show that any of the lands are wild or unoccupied; and if they are, or the plaintiff has conveyed any of them, it was for the defendant to make proof thereof, and there is no such proof We see no error of which the appellant can complain.
The judgment of the circuit court is affirmed.