Page:North Dakota Reports (vol. 3).pdf/107

 clearly to the effect that in statutory actions to foreclose the lien of a tax, or to recover judgment for a delinquent tax, the com- plaint must be governed by the ordinary rules of pleading under the code. It must state the material facts, and, among such, is the fact of a valid assessment and levy. This court is wholly unable to discover any difference in principle between the case of a plaintiff who, under a statute brings an action to foreclose a tax lien, or to recover a judgment fora delinquent tax and the case-of a defendant who seeks, under § 1643, to recover judgment for taxes in an action brought to avoid a tax deed. We think that the legislature did not intend in passing § 1643 to inaugurate any new rules of pleading, practice, or evidence to govern the cases brought under that section: ' Tested by ordinary rules, the answer is fatally defective. It alleges payment of subsequent taxes, but omits to allege that such taxes were ever assessed or levied. But, upon proper averments in the answer, issue was joined upon the legality of the taxes upon which the tax sales were made. We have held that the county tax of 1886, for which the sale was made, is a valid tax, for that the defendant is entitled to judgment for such tax, with interest and penalty, as provided by the statute. See Farrington case, supra. Also Everett v. Beebee, 37 Iowa, 452. Inasmuch as further proceedings in the court below have become necessary, we have concluded to direct that the defendant, at his election, may apply to the District Court for leave to amend his answer by inserting therein averments of fact necessary to show that since the county tax sale he has paid legal county taxes against the lots in question. We have already said that the city tax for 1884, on which the sale is made is a void tax. But leave is given to the defendant to allege, at his election, in his answer the facts necessary to show that since the sale defendant has paid valid city taxes on the lots. If, after a hearing had upon issues made by an amended answer, it shall appear to the District Court that, in addition to the tax, interest, and penalty due on the tax of 1886, other valid county or city taxes have been paid by the defendant, the same shall be included in the amount to be