plicable to such a case is that the municipality is under no obligation to refund the purchase money because the tax-title fails. The purchaser is a volunteer and buys at his own risk.” Citing Lynde v. Melrose, supra, and Cooley, Tax’n, 572. The court adds; “The case of Phillips v. City of Hudson, 31 N. J. Law, 143, is not to be regarded as opposed to this rule. * * * * * These judges reached the conclusion that the assessment was void, that the declaration of sale was a nullity, and that the case stood as if no conveyance had been executed. The matter was thus placed upon a footing of an unexecuted agreement to convey in pursuance of a sale made to enforce payment of a tax not legally due to the city. Viewed in this aspect, the case is, by essential differences, distinguished from the case in hand.” The cases heretofore cited from Wisconsin, and the casesin 40 N. Y. and 31 N. J. Law, are the only cases to which our attention has been called (and we find no others) where it has been held that the purchaser of invalid tax sale certificates could recover his purchase money in an action for money had and received, and in the absence of a statute. Both New York and New Jersey have subsequently recognized and affirmed the general doctrine denying a recovery in such cases, as stated in Lynde v. Melrose, supra. In Otoe Co. v. Gray, 10 Neb. 565, 7. N. W. Rep. 325, the action was against the county, and a recovery was refused on the ground that it did not appear that the county received to its own use all the money paid. That point was deemed sufficient for the decision of the case, and the general right of recovery is neither denied nor affirmed. The case would not seem to be an authority either way.
On the other hand, the cases that have denied a recovery are very numerous. Cooley on Taxation, 475, thus states the law: “A tax-sale is the culmination of proceedings which are matters of record, and it is a reasonable presumption of law that, where one acquires rights which depend upon matters of record, he first makes search of the record in order to ascertain whether anything shown thereby would diminish the value of such rights, or tend in any contingency to defeat them. A tax purchaser, consequently, cannot be in any technical sense a bona
