The lands upon which the taxes were paid are situated in Webster county, and the taxes in controversy were paid to the treasurer of that county. The county is made a party defendant, but as we understand the record, it is not claimed that the county is liable to the plaintiff. The relief prayed is that an account be taken of the amount of taxes that defendant should pay, and that a decree for the proper amount be entered up against the defendant in the name of the plaintiff, or in the name of Webster county, for the use and benefit of the plaintiff, and made a lien on the lands upon which the said taxes were paid. The actual controversy then is between the plaintiff and the defendant Litchfield, and the ultimate question to be determined is, should the defendant reimburse the plaintiff for the taxes so paid.
The case in its general features is similar to Goodenow v. Moulton, 51 Iowa, 555. Roth involve reimbursement for taxes paid upon lands held by the same title, and if it were not for the defense of former adjudication we are unable to see why the decision in that case is not conclusive of this. Relieving, however, that this case must be determined upon the question of former adjudication, and upon that alone, we will proceed at once to a consideration of that question.
i itoiimbs. assigneeatl°n: bound. It is proper to state in the outset that the plaintiff claims the right to recover as the assignee of the Homestead Company, Being a mere assignee, if the claim was before the assignment settled by a final adjudication against the Homestead Company, the plaintiff cannot recover. It is claimed by the defendant that the claim now made was fully and finally adjudicated by the Supreme Court of the United States in the case of Homestead Company v. *229Valley R. R., 17 Wall., 153. To determine this question an examination of the record made in that ease is necessary.
That action was commenced in the Webster District Court, in this State, in October, 1868. The substance of the petition was that the plaintiff therein, the Homestead Company, was the owner of certain described lands and that the defendant made some claim thereto. It was prayed that the title of the plaintiff might be quieted. One paragraph of the petition was as follows: “The said plaintiffs have been in possession of the lands claimed by them, themselves or their vendees in contract since 1861. They have paid the taxes thereon to the State of Iowa since, in all amounting to $80,000, and if their title has failed they are entitled to have their taxes refunded since 1861 by the holder of the legal title who has not paid them.” The following clause is in the prayer of the petition: “That in the event of the decree that the plaintiff’s present title, or any part of it, has failed, that the said Des Moines Navigation and Eailroad Company and its assignees may be decreed to repay to the plaintiff all the taxes which he has paid on said lands and interest thereon.”
The answer in that action, among other averments, contains the following: “And this defendant further averring says: that as to whether or not the said complainant and its vendees have been in possession of, and paid taxes on the lands claimed by them since 1861, to the amount of $80,000, this defendant is ignorant and uninformed, save by the said complainant’s bill of complaint, but he expressly avers that .the possession of the said lands by the said complainant and its vendees since 1861, is, and has been unauthorized and wrongful, and that the said complainant should be required to account for the use and rents* and profits thereof, to the proper owners respectively, during the time they have been in such possession, and he expressly alleges and avers that all taxes whatever, paid by said complainant, have been paid by complainant voluntarily, with a knowledge of all the facts, and *230that the complainant is not entitled to have the same, or any part thereof refunded.”
The cause having been transferred to the Circuit Court of the United States was submitted upon the evidence, among which was a stipulation in these words: “It is agreed that the only questions submitted on the hearing are:
“1st. In wThich of the parties is the paramount title in controversy?
“2d. If the title shall be adjudged to be in the defendant, the Des Moines Navigation and Railroad Company, is the plaintiff entitled to be reimbursed for taxes which it has paid on the lands?
“The amount of taxes is admitted to be $2,000. If the court shall find that plaintiff is entitled to be reimbursed, the question of the amount to be reimbursed shall be referred to a master, and the defendant shall have a right to show any counter-claim or other matter which should be considered as reducing the amount to be reimbursed.”
The decree of said court after reciting that the cause was “heard upon the bill and amendments, answers, replications, agreements of counsel, exhibits and depositions,” concludes as follows:
“And thei*eupon, it was ordered, adjudged and decreed, that the plaintiff’s bill as to the lands in townships 86, 87 and 88, ranges 27, 28, 29 and 30, east and west of the Des Moines River and south of the second correction line, and townships 89, 90, 91 and ■ 92, ranges 28 and 29, east of the Des Moines River, and the bill for relief for indemnity lands in lieu thereof, be dismissed. And the bill for relief as to the lands in townships 89 and 90, north, range 28 and 29, west, on west side of Des Moines River, be dismissed without prejudice, and that the plaintiffs pay the costs.”
The decree of the Supreme Court of the United States upon appeal was as follows: “This cause came on to be heard on the transcript of the record from the Circuit Court of the *231United States for the district of Iowa and was argued by counsel. On consideration whereof it is now here adjudged and decreed by this court that the decree of the said Circuit Court in this cause be, and the same is hereby- affirmed with costs.”
The defendant, Litchfield, was made a party defendant in the suit. He was then the owner of all the lands, the taxes upon which are now in controversy, and all of said lands were embraced in that action. It will thus be seen that the controversy in this action is between the same parties as that in the former suit.
2. decree : iontí’courtí1 In the opinion of the Supreme Court of the United States, it was-distinctly held and determined that there could he no recovery by the plaintiff for the taxes paid. Counsel for appellant contends that the rights of the parties are to be determined by the decree, and as the decree is a simple affirmance of the decree of the Circuit Court, it follows that nothing was adjudicated but what was adjudicated by the Circuit Court. This position is not controverted by counsel for appellee, and we believe it to be well established that the judgment or decree of a court controls the written opinion, and if they are at variance the former controls and determines the rights of the parties. Cooley v. Smith, 17 Iowa, 99.
3juaiSonfd *2324 _. rule applied, *231There is no contention between counsel for the respective parties as to the test by which to determine whether the matter in controversy has been adjudicated. The rule, as appears to be well stated by all the authorities, is, that where a former judgment or decree is relied upon as a bar to an action it must appear either by the record or by extrinsic evidence that the particular matter in controversy and sought to be concluded was necessarily tried and determined in the former action. Packet Company v. Sickles, 5 Wallace, 580; Wood v. Jackson, 5 Wend., 10; Miles v. Caldwell, 2 Wall., 35. It is also *232conceded that the burden of establishing the plea of former adjudication is upon the defendant. Now, while there is no room for controversy as to the above rules of law, the difficulty in this case, as it is in many of the cases found in the books, consists in determining whether the facts the case in hand within these rules. To properly determine this we must not only consider the decree but the whole record in the case. This being done we find that the plaintiff demanded reimbursement for the taxes paid, in case it should be found that the defendant had the better title. This was properly joined with the other equitable demand claiming title to the land. It was not as claimed by counsel a mere legal claim of which a court of equity had no jurisdiction. To determine plaintiff’s claim for taxes paid necessarily involved the taking of an account of the amount due thereon. The defendant by answer claimed title to the land and denied the right of the plaintiff to recover for taxes paid for the reasons set forth in the answer. The respective parties by their stipulation submitted to the court two propositions or issues: “1st, as to the title to the land; and 2d, as to the right to reimbursement for the taxes paid.” The very question was by these proceedings submitted for the determination of the court, just the same as the question of title. It was not submitted by mere inference, but the court was required to determine it by the issues submitted and by the express agreement of the parties. It follows if that question was determined by the decree it was an end of the controversy between these parties, whether the decree was right or wrong. The decree, as will be seen, dismisses the plaintiff’s bill as to the lands, describing them. What was the bill? It was a claim that the plaintiff had title to the lands, or if not the title, then an equitable demand for certain taxes paid upon it, and the dismissal as to the lands was a dismissal of both claims made by the plaintiff. It will not do to say that it was a dismissal as to the title only. The decree when *233it provides for a dismissal as to the land embraces all claims made in the bill upon the land or on account of the land, whether it be for title or reimbursement for taxes paid.
B__new tiorffwiie applied' It is contended by counsel for appellant that the decree, if an adjudication at all, is only conclusive as to the taxes which had been paid prior to the commencement the suit, in 1868. In other words that the decree is not an adjudication of the right to recover the taxes subsequently paid. The difficulty in maintaining this proposition is, that although the taxes in controversy were paid in the different years, the payment for all the years were made in the same right without any change of the relation of the parties, nor of the law governing their rights. In 2d Smith’s Leading Cases, 789, it is said: “An adjudication by a competent tribunal is conclusive, not only in the proceeding in which it is announced, but m every other where the right or title is the same, although the cause of action may be different.” In Aurora v. Nest, 7 Wall., 82, the adjudication relied upon was a judgment upon other coupons attached to the same bonds, and the court says: “ It cannot be successfully denied that the cause of action in the former suit was - the same as that in the pending suit, within the meaning of that requirement, as defined by cases of the highest authority. When the parties are the same, the legal effect of the former judgment as a bar is not impaired because the subject matter of the second suit is different, provided the second suit involves the same title and depends upon the same question.” See, also, Whittaker v. Johnson Co., 12 Iowa, 595. The case at bar appears to us to be fully within the rule of these authorities. The argument ''jt the writer of the majority opinion in The City of Davenport v. The C., R. I. & P. R. Co., 38 Iowa, 633, would seem to be contrary to the view herein expressed. But that case was a controversy between the taxing power to collect taxes levied in successive years, and it was held that a decree enjoining the collection of taxes levied in certain years was no bar to *234a recovery for levies in subsequent years. One ground upon which the decision was placed was that the taxes in controversy were levied under a different act of the legislature. That was a direct proceeding by the taxing power to collect its revenues, and it may be well questioned whether any decree could operate upon 'future assessments and levies. This is an action for an account to be taken of the amount of taxes paid by plaintiff upon defendant’s land. Permitting the defense of former adjudication to prevail in this case in no way interferes with the taxing power, as it would have done in the case cited.
6 _. ais_ outi?reju-k~ dice in part. Lastly, it is urged that as to part of the land the bill was dismissed without prejudice, and as the only evidence introduced was the stipulation that the amount of faxes paid was $2,000, there is no showing upon part 0f the land the same was paid. It is claimed if it was paid on the land as to which the bill was dismissed without prejudice, there was no adjudication. But the plaintiff (the Homestead Company), averred payment of taxes upon “the lands” described in the petition, which means all the lands. And the stipulation recites generally that the amount of taxes paid was $2,000. This leaves it to be plainly inferred that payment was made on all the lands.
We think the foregoing discussion disposes of all questions necessary to a disposition of this case, and we unite in the conclusion that the decree of the Circuit Court should be.
Affirmed.