These are cross appeals from the same judgment. The action is to recover money paid on void tax certificates. The plaintiffs are dissatisfied with the judgment because the amount recovered was less than they claimed; the county is dissatisfied because there was any recovery. The objections to any recovery will first be considered.
The first error assigned is, that the circuit court erred in holding that the county board, or that court on appeal, had jurisdiction of the action. It is said the right to present a claim to the county board for allowance, and to appeal from its decision, is purely statutory, and that the stipulation of facts shows that the claim as presented to the county board was for a greater amount than was paid the county. It is insisted that this was contrary to the provisions of ch. 250, Laws of 1873, and had the effect to deprive the board of all jurisdiction in the matter. "Without, however, stopping to consider the grave objections urged against the validity of that act, it manifestly was not intended to deprive the county board of any jurisdiction which it had previously exercised in the allowance of claims. The act plainly recognized the right of the holder of the invalid certificate to present his claim for the amount paid thereon, and such presentation should doubtless be made to the county board, which has the power to allow it. The case of Stringham v. The Board of Supervisors of Winnebago Co., 21 Wis., 594, to which we are referred upon this point, does not seem to have any application. Here the county board had jurisdiction to act upon the claims; and, that board having disallowed or refused to pay them, the plaintiffs had the right to an appeal.
The answer which the county was permitted to file in the *372circuit court, among other defenses, sets up and relies upon the statute of limitations. By ch. 112, Laws of 1867, as amended by ch. 56, Laws of 1868, the liability of the county to refund money paid on defective tax certificates is limited, in case of an assignee of the county, to six j^ears from the date of the assignment of the certificate. Baker v. The Supervisors of Columbia County, 39 Wis., 444; Baton v. The Supervisors of Manitowoc County, 40 id., 668. It appears that one Denniston, through whom the plaintiffs claim, purchased the certificates of the county on the 22d of January, 1868. And it is said that no steps were taken to collect the money on these certificates, which would avoid the bar, within six years from that time. Upon the admitted facts of this case, we deem this position untenable. The record in the case shows that these claims were presented by the plaintiffs to the board in November, 1873, and were then disallowed for want of the requisite proof that the plaintiff’s then owned the certificates, and because several distinct claims were included in one account. Before the next annual meeting, in 1874, the plaintiffs caused the claims to be again presented in a form to obviate the objections which had been previously taken to them by the board. But, by the presentation of the claim in 1873, an action on the certificates was really commenced; and what was done in 1874, was a continuation of that proceeding. Piling an amended account, so as to remove the objections taken to the original one, was quite like filing an amended complaint in an ordinary action. It was not the commencement of an action, but was in aid of a proceeding then pending. The board disallowed tire first account because it was not properly rendered and verified, and the plaintiffs then proceeded to amend it, and supplied other evidence of ownership. In order to preserve their rights, the plaintiffs were not bound to take an appeal from the decision of the board, but might do away with the objections which were taken to the *373form of the account and the sufficiency of proof. See secs. 37 and 38, ch. 13, E. S. Eor these reasons we hold that the bar of the statute does not apply.
It was also insisted that the purchase of the tax certificates by the plaintiffs, under the circumstances disclosed, operated as a voluntary redemption of the lands from sale, and that therefore there can be no recovery. But it is sufficient to say that the lands were not subject to taxation when sold (Denniston v. The Unknown, Owners, 29 Wis., 351), and consequently there were and could be no taxes levied upon them. This is all we deem it necessary to say on the appeal of the county.
On their appeal, the plaintiffs insist that the circuit court erred in holding that they were entitled to recover only fifty per cent, of the face of the certificates (this being the amount paid by Denniston to the county), with interest. On what principle of law it can be successfully maintained that the county is liable to refund more money than it received on the certificates, we are at a loss to understand. It is obvious that this is an action to recover bach money paid for a consideration which has wholly failed. The question therefore is, What is the measure of the recovery in such a case? It seems to us that it is the money paid the county for the certificates, together with lawful interest. It is difficult to perceive any principle of law or equity which will allow the plaintiffs to recover more than this amount. Suppose Denniston himself had brought the action: could he have recovered of the county more money than he paid? Would he have been allowed to recover money which the county had not received, and which he had not paid on these certificates? The proposition seems too plain for argument on general principles, that the county is only bound to refund the money it has received, and interest. The same rule should govern as in case of a sale of real or personal property, on failure of title, where there is an express or implied warranty. There the general rule is, where it *374turns out that the vendor is not the owner, and his title fails, that the price paid by the vendee, with interest, can .be recovered back in an action for money had and received. And this should be the amount of the recovery in the present case.'
Nor do we think any greater liability is imposed upon the county by the statutes on the subject. The learned counsel for the plaintiffs on this point refers to the provisions of ch. 22, Laws of 1859, as authorizing a recovery for the full face of the tax certificates, whether purchased of the county at a discount or not. But we do not think this statute, or any other to which our attention was called, sustains this position. It is true, the law of 1859 provides that where it is discovered, etc., that the sale of lands for taxes is invalid, the county board or other officers of the county shall cause to be refunded the money paid on the sale. The statute is framed on the equitable principle that money paid the county on a consideration which has failed, shall be recovered back. This is in the case where the lands are bid off at the sale by an individual. But here the lands were bid in by the county, and the certificates were afterwards sold to Denniston for fifty per cent, of the face thereof. . Under these circumstances there is nothing in this law which requires the county to pay the holder any greater .sum than it received for the certificate, with interest. This decision is confined to the facts of this case. Whether a different rule would obtain in the cases supposed by counsel, it is unnecessary now to determine. Those cases may well be left for adjudication as they arise.
It follows from these views that the judgment musí be affirmed on both appeals.
By the Court. — So ordered.
Ryaw, O. «J., took no part.