Page:North Dakota Reports (vol. 1).pdf/410

 find no reason to distinguish this case from Budge v. City of Grand Forks, supra.

But the plaintiff bases his right to recover more especially upon § 1629 of the Compiled Laws, which is as follows: "When, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time the county is to save the purchaser harmless by paying him the amount of principal, and interest at the rate of twelve per cent. per annum from the date of the sale, and the treasurer and his sureties shall be liable for the amount to the county on his bond, or the purchaser may recover the amount directly from the treasurer." The trial court placed the liability of the county upon this statute, and under the agreed facts reached two conclusions of law: First, That the lands were not taxable when the assessment and levy were made. This is conceded. And, second. That the lands were sold by the mistake and wrongful act of the county treasurer. This conclusion is challenged, and the case turns upon its correctness. The case is of general interest to the state, as nearly all of the counties that include any portion of the grant to the Northern Pacific Railroad Company are directly interested in the result, and the aggregate of money involved is great. This statute appears as § 78 of chapter 28 of the Political Code of 1877. Under that section the purchaser was entitled to recover the amount to which he would have been entitled had the land been rightfully sold; and by another provision of statute the purchaser was then, and still is, entitled to his principal, and interest at the rate of 30 per cent. per annum, in case of redemption from rightful sales. But the original § 78 was amended by § 1, c. 130, Laws 1885, by which the rate of interest was limited to 12 per cent., and as thus amended it forms § 1629 of the Compiled Laws. The states of lowa and Nebraska have similar statutes. So far as we can trace it, the statute originated in the Iowa Code of 1851, where it appears in language almost identical with our § 78 of chapter 28 of the Code of 1877. We do not find the Iowa statute construed by the courts of that state until after the Revision of 1860, when the statute appears in a changed form, and reads: "When, by the mistakes or wrongful act of the treasurer, land has been sold on which no taxes were due, or were errone-