ON REHEARING.
Servers, Ch. J.I. On the petition of the plaintiff a rehearing was granted to the end we might again examine the question determined in the foregoing opinion. Such questions have been ably argued by counsel and in relation thereto we desire to say:
*2357 wmmit T?oN?eSect of' *234Previous to bringing the action referred to in the forgoing opinion, and reported in 17 Wall., 153, the plaintiff’s assignor *235paid certain taxes on the lands in controversy in the action. If it was held the plaintiff in said action conld not recover the lands, then as alternative relief the plaintiff asked judgment for the taxes so paid. The object of this action in part is to recover the same taxes, that is those paid before bringing the former action. The right to recover is placed, as we think, on precisely the same grounds in this as,Nin the former action. The only allegation made now that was not made then is that the taxes were paid in good faith, under the belief the Homestead Company owned the land and was therefore legally bound to pay the taxes. But it is evident such good faith and belief must have existed when the payments were made, and if material such facts should have been alleged and established in the former action. The defense in such action was that said taxes had been voluntarily paid. This defense was sustained. The same defense is relied on now. As to the taxes paid before the commencement of the prior action the adjudication then must be regarded as an estoppel and bar to a recovery in this action.
"While counsel for the plaintiff does not concede the correctness of the foregoing he earnestly contends such cannot be the rule as to the taxes paid subsequent to the former action. That question will now be considered.
II. The prior action was commenced in 1868 and was not determined by the Supreme Court of the United States until 1872. The plaintiff’s assignor paid the taxes for the years 1868 to 1871 inclusive, and it is sought to recover the money so paid in this action. Counsel on both sides have cited a large number of cases as bearing upon the question as to what constitutes an adjudication that will estop the parties from again litigating the question determined in another action. There is no real conflict in the cases thus cited. The real difficulty is to ascertain whether the case is brought within the adjudicated cases and the rules established as to *236what constitutes an estoppel when a prior judgment is pleaded in bar.
Counsel for the plaintiff insist each payment of taxes for each year constitute a separate and distinct transaction or cause of action, and therefore . an adjudication as to the taxes paid in one year cannot estop or have any bearing upon' the right to recover for taxes j>aid in a subsequent year. It is said a levy of taxes must be made for each year and that as payments are made at different times and may be predicated on different and distinct rights, therefore the right to recover for one payment can in no manner be affected by an adjudication made as to some other year and payments. This, we think, may ordinarily be so, and in The City of Davenport v. C., R. I. & P. R. Co., cited in the foregoing opinion, it was said in argument that taxes for each year constitute separate causes of action. It is conceded in the foregoing opinion this was in conflict with the views therein expressed. Reflection has satisfied us this concession should not have been made, for the reason no such conflict in fact exists.
It is undoubtedly true that the taxes of each year ordinarily constitute separate and distinct rights or causes of action. But where an action is brought to recover taxes paid in one year, and an action is afterward brought to recover for the taxes paid in a subsequent year, an<f the adjudication in the first is pleaded as a bar to the recovery in the second action, the question whether the estoppel is effectual will de- < pend upon the issues in the two actions.
8.__; cSfoPaetiOO. *237_._. rule applied. *236If the right to recover and defense thereto are based upon precisely the same ground, why litigate again the question that has been determined. In such case the very right of the matter has been determined by a , „ , . • -1 • a _ . J court ot competent jurisdiction. It is not essential the causes of action should be the same, but it is essential the right or title should be. That is, the issue in both actions and the matter on -which the estoppel depends must *237be tbe same or substantially so. The very matter or thing which it is sought to litigate must have been adjudicated in the prior action. In such case the bar or estoppel is complete. This rule will not, we think, be disputed. Therefore authorities are not required in its support, but see Merriam v. Whittemore, 5 Gray, 316. No point is made in this, nor was there in the prior actions, that there was no assessment or levy of the taxes. Nor was there any question as to the payments made by the plaintiff’s assignor in the former action, and there is none now as to the payments made for subsequent years. In fact in the former action and in this the right to recover is conceded, unless the payments were voluntary and therefore no recovery could be had. This identical question was determined by the Supreme Court of th§ United States in the case cited in the foregoing 0pini0Ilj that is, said court determined the payments made by the plaintiff’s assignor were voluntary and therefore no recovery could be had. Now it will be conceded such adjudication had reference only to the taxes paid prior to 1868, and that plaintiff’s assignor could not have recovered in the action the taxes subsequently paid.
But it conclusively appears, we think, the subsequent payments were made under the same claim of right as those previously made. There is no difference in the circumstances under which the payments were made as contemplated and adjudged by the Supreme Court of the United States. It was said by that court the right to recover was based on the ground the taxes were paid “in good faith and in ignorance of the law.” That is all that is claimed as to the subsequent taxes. The very right of the present litigation has been determined by a court of competent jurisdiction and therefore it cannot be again litigated. Many cases may be supposed which have more or less bearing on the case at bar. But as to all of them it can justly be said, if the right and title upon which the right to recover depends has been put in issue, and been determined, the same right and title cannot’be liti*238gated again between the same parties in another action. But if the right and title has not been adjudicated then no bar or estoppel is created. It may be supposed in this case the Supreme Court of the United States might have held the payments made were not voluntary and a recovery could be had. Now, in an action between the same parties to recover taxes paid for subsequent years, the defendant could not have again litigated the question of voluntary payment, unless he could show the circumstances under which they were made were different from those under which the prior payments were made. So here, as has been said, all the payments were made under the same claim of right. It may possibly be claimed Goodnow v. Moulton, 51 Iowa, 555, is based on the thought the taxes were paid at the land owner’s request. That there was no express request must be conceded. Now, it may be where taxes are paid because of such a request an adjudication that there could be no recovery for the taxes so paid would not bar a recovery for taxes paid for subsequent years under a similar request. But in the case at bar the request must be implied by law, and when this is attempted it is found the payments for each year were made under precisely the same circumstances, and that it has been adjudicated, no such request can be implied. It seems to us this must end the controversy, because the subject-matter or right to recover in both actions is precisely the same, and that is, can or will the law imply a request from the land-owner? We regret this result as in the absence of the estoppel we reached the conclusion the plaintiff was entitled to recover. Goodnow v. Moulton, 51 Iowa, 555.
10. practice 1ST SUPREME court: ob-Section too iate. III. The defendant filed a reply to the petition for a rehearing as contemplated by statute. The plaintiff could not as a matter of right file any further argument. 0 . , ... c- - . touch an- -argument, however, was m fact filed m ° t t which for the first time it is suggested the Federal Courts did not have jurisdiction in the prior action, and therefore the adjudication pleaded as an estoppel is abso*239lutely void. The defendant insists this point is made too late. "With much force the defendant insists, as no such point was made below, the abstract was not prepared with reference to such question, and he insists there is matter of record below which will clearly show the Federal Courts had jurisdiction. The plaintiff attempts to meet this objection by putting as a part of a still later argument filed by him what he claims are the omitted portions of the record below. We feel constrained to hold that after a cause has been submitted, determined, and a rehearing granted, it is too late to raise for the first time such a vital question as that now made in an argument filed in aid of the petition for a rehearing, the same not being filed as a matter of right, but simply as a matter of grace and favor of the court. The former opinion is
Adhered to.