1. tax sale: Amount paid: practice. The controversy between the parties on the former trial was one relating to the title. The only reference to the taxes in plaintiff’s pleadings were the following remarks in an amended petition :
“5. The land in controversy was open prairie at the time of the tax sales. Plaintiff took possession of the land under the treasurer’s deeds, on the 6th day of April, 1866, and maintained such possession by paying all the taxes due on the land for the years I860 till 1874, both included.
“6. Plaintiff’s possession continued uninterruptedly from the time of said April 6, 1S66, till December, 1874,-by payment of such taxes, and defendant’s counter-claim is therefore barred under the statute of limitations.”
Upon the trial, when plaintiff contested the right of defendant to question the tax title until he had paid the taxes, defendant made the following offer: “He avers that for some years the plaintiff claims to have been in possession of the said land; the defendant asks for an account of the rents and profits, and avers that he is ready and willing to pay the taxes and interest, and any balance found due after such accounting is had.”
It will readily be perceived that the plaintiff pleaded the payment of tax as showing tñat he was in possession of the land. No amount of such payments was stated, and no claim for interest or penalties was made, and there was no demand for judgment. No evidence was introduced excepting the certificate of the treasurer stating that E. H. Miller paid all the taxes on the said land for the years from 1861 up to 1874.
This item of evidence (conceding it to have been compe*528tent, but which we do not decide) gave the court no aid in-arriving at the amount due the plaintiff. It appears to have been a mere general statement of the fact that Miller paid* the taxes. It does not appear that the commissioner appointed' on the first trial, to ascertain the amount of taxes, performed-that duty before the decree was entered. He was appointed by the final decree.
Under these circumstances we think it was the right of the defendant to appear in the court below when the cause was remanded, and contest the claim of plaintiff for taxes paid.
When the cause was reversed, and remanded to the court below, to determine the amount due the plaintiff for taxes paid, there could be no determination of the amount without proper pleadings and competent evidence. It involved a new trial as to the claim for taxes paid by plaintiff.
Reversed.