ON REHEARING.
Miller, Oh. J".Within the time allowed by law, appellee filed a petition for a rehearing on the ground that the decision of this court was based upon an erroneous conclusion of fact. It is insisted by counsel for appellee that the evidence given on the trial did not show that the plaintiff had conveyed its interest in the lands in controversy to the American Emigrant Company, prior to the commencement of this suit, as found and stated in the foregoing opinion. Upon the abstract of the *510case as submitted originally to us, there was no such error in Our conclusions. In giving the testimony, the abstract states, among other things, as evidence given' by the defendant, “ Copy of contract made Ty and between Adams county * * * , and the American Emigrant Company on the 3d of Sej>tember 1862, whereby the county sells and agrees to convey to said company, all the right, title and interest in, and, to all swamp lands in said county, to which it is or may become entitled, * * . ”
DEED.
“ Copy of deed from Adams county to American Emigrant Company, dated September Ith, 1863, for the lands and interest mentioned in the above contract.”
a action • right of: deed. Neither the contract nor deed were set out at length in the abstract, nor was it necessary that they should be, as no question was made upon the form or construction of either instrument. There was, therefore, no mistake in our conclusion upon the, fact of conveyance, as shown by‘the original abstract. In his petition for a rehearing, however, appellee’s counsel p>rints full copies of the contract with, and deed to, the American Emigrant Company, and insists that the lands in controversy have not been conveyed by the county to such company, as foregoing opinion finds: It is true that the ian¿[s described in the deed of the county do not include the lands in controversy, the latter being in odd numbered sections, while the former are in even numbered sections. The deed however, contained a covenant to convey to the same grantee at any time, by similar deed at the request of the company, all the lands 'within the county, that might at any time be duly selected as swamp lands, not included in the deed made. So, also, the contract between the county and the company stipulated for a conveyance of “ the swamp lands belonging to the county,” so that the lands in controversy are included in those agreed by, the county to be conveyed. We will not now stop to determine whether or not the county is in a position to recover these lands after entering into these covenants to convey them to the Emigrant Company, since it is claimed *511by tbe plaintiff’s counsel that the contract has long since been rescinded, and is no longer binding upon the county, and that there is no evidence of a delivery 'of the deed to the company, and also because, upon another very satisfactory ground, we think the plaintiff cannot recover these lands in this action.
4 ESTorrEir compromise. The lands in controversy had been claimed by the defendant under the Congressional land grant of May 15th, 1856. The county claimed the same lands as swamp ian¿s. On the 25th of October, 1861, the claim of the county was rejected, and the lands certified by the. proper department at "Washington, as belonging to the defendant. Whether this decision was right or not we are not called, on now to decide; but from this time, namely, from 1861, these lands were charged with taxes for almost every year as the property of the defendant. In 1868, there stood charged on the tax books of the county against the defendant taxes and interest to the amount of $22,610, for various years, on, lands of the defendant within the county, the lands in controversy being included among those upon which this amount of tax and interest was charged. The railroad company were claiming that some of these taxes were illegal, and at the June session, 1869, of the Board of Supervisors, the defendant, presented a petition to the board, stating such illegal assessment, etc., and asking the board to remit such illegal taxes, and order them stricken from the tax book. The matter was referred to a committee of the board, who reported that “ there is charged against the railroad company taxes and interest to the amount of $22,610.04, from the year 1861 to 1868, inclusive,” and recommend that the sum of $12,610.04 be remitted, upon payment of the balance, $10,000, by the railroad company within ten days. This proposition the company accepted, and paid the money, $10,000, in full of all taxes, interest and penalties assessed upon their lands in the county, and it was so received and receipted for by the county. Thus the county, with full knowledge that the defendant claimed to own the lands in dispute; that they were placed upon the tax books of the county as defendant’s property; that taxes were charged against them with other of defendant’s lands for nearly *512every year from 1861 to 1868, inclusive, and were then among, the lands of defendant charged with taxes which, in the aggregate, amounted to over twenty thousand dollars, the county, secures to be paid as a' compromise of the taxes charged-against defendant, (some of which were claimed by defendant-t-ci be illegal), the large sum of ten thousand dollars upon all' of the lands taxed to defendant, without making any claim: to any of the lands thus taxed to defendant, as being owned-, or claimed as the lands of the county. The testimony shows that more than $600 of the sum paid was paid upon the-lands now claimed by the plaintiff in this action. It cannot be presumed that this compromise could have been effected,' and this large sum of money obtained from- the defendant, if< the county had asserted a claim to these lands at that time.
. The county having thus recognized the plaintiff as the 'owner of the lands in controversy, and secured an advantage to itself thereby, it is now estopped from denying the existence of the fact upon which such advantage was secured. Having remained silent when it should have spoken, it must' now continue silent when it desires to speak. Lucas v. Hart, 5 Iowa, 415; Davidson v. Follett, 27 Id., 217; Iowa Railroad Land Co. v. Story Co., 36 Iowa, 48; Hall v. Doran, 13 Iowa, 368; Bullis v. Noble, 36 Iowa, 618.
The judgment of the court below will’be '
Reversed.