dissenting. — The defendant paid the taxes in good faith, under a claim supported by color of title. It was' his duty to pay the taxes; not only was he permitted to pay them, *528but he was required so to do by his obligation as a good citizen. The State demands of every one holding lands to pay the taxes assessed thereon. Defendant, believing that he owned the land, was bound to pay the taxes assessed against it. The plaintiff, though holding the valid title, failed to pay the taxes. We have the case, under the foregoing opinion, of the law making the discharge of a duty by a faithful citizen operate to his injury and to the advantage of another, who disregards the duty imposed upon him by the law. Courts ought never to administer the law so that it will work such results.
Plaintiff ex aequo et bono ought to reimburse defendant. I want no other ground than this to base a conclusion that defendant may recover.
It is the policy of the State to encourage the payment of its revenues. No laws exist which discourage it. But the decision of this court, announced in the foregoing opinion, says to all holding doubtful title: you will pay taxes at your peril; if you lose the land your adversary shall enjoy the benefit of your payment, which you shall lose. There can be no greater discouragement to the payment of taxes on lands held by doubtful titles.
The conclusion I reach is, in my judgment, supported by Claussen and Kuehl v. Rayburn, 14 Iowa, 136; Orr v. Travacier, 21 Iowa, 68, and Thompson v. Savage, cited in the foregoing opinion of the majority of the court, and by other cases cited in the last mentioned decision.
Homestead Co. v. Valley Railroad Co., 17 Wal, 153, seems to be a controlling case with my brothers. The question is not argued in the opinion in that case and no authorities are cited. About all that is said upon the point is quoted in the foregoing opinion of the majority. The view 1 have above presented is not referred to, and does not appear to have been brought to the attention of the court. Under these circumstances I am not bound to follow the decision, believing as I do that it is in conflict with the law.