Page:North Dakota Reports (vol. 1).pdf/405

 which remained unpaid on October 6, 1885, and on said date the treasurer of said county proceeded to sell said lands for said delinquent taxes, and the plaintiff purchased the same, and it was to recover the purchase money so paid that this action was brought.

No question is made as to the regularity of the sale, or the tax proceedings leading thereto. The statement of facts, as was intended, brings the lands clearly within the conditions existing in Railroad Co. v. Rockne, 115 U. S. 600, 6 Sup. Ct. Rep. 201. Under the law as settled by that case, the lands in question were not taxable at the time the taxes were assessed and levied, by reason of the non-payment by the railroad company of the survey fees, for which the general government had a lien upon the lands The lands not being taxable, of course nothing passed by the sale. Plaintiff claims to recover his purchase money, with 12 per cent. per annum interest, under a statute to be hereinafter considered; or the purchase price, with legal interest, as for money had and received. The liability of a taxing municipality to refund money paid for void tax-sale certificates, in the absence of a regulating statute, has very recently received full consideration by this court, and such liability was denied. See Budge v. City of Grand Forks, 47 N. W. Rep. 390, (ante p. 309). As the briefs of counsel in this case were in the hands of the court, and received careful consideration before the decision was reached in the case against the city of Grand Forks, it will not be necessary for us to say anything upon this point in addition to what we then said, except to note one distinction which is strenuously insisted upon by counsel. In the former case the invalidity of the tax-sale certificates arose from certain irregularities in the proceedings of the taxing officials; in this case the invalidity arose from the entire absence of power in the sovereignty under whose authority this tax-sale was made to impose any tax whatever upon the lands which plaintiff purchased at said sale. In Railroad Co. v. Rockne, supra, it was held that when, after the passage of the act of congress of July 15, 1870, lands within the original grant to said railroad company were surveyed by the general government, the government had a lien upon the lands for the expenses of