Slack v. Norrish, 33 Vt., 818; Gillette y. Hartford, 31 Conn., 356; Saulters v. Victory, 35 Vt., 357.
The rule that a purchaser cannot recover the money paid by him at a void tax-sale, as the cases show is based upon the principle that the ‘purchaser at tax-sale is a volunteer in the payment of taxes legally levied on land subject to taxation, and has been applied only in cases where jurisdiction existed to levy the taxes, but the title of the purchaser failed by reason of non-compliance with the statute in the assessment, levy or sale; in short, the cases, in which the rule of caveat emptor applies. Sullivan v. Davis, 29 Kan. 21 (star p. 28); Lyon Co. v. Goddard, 22 Kan. 276 (star p. 389); Lynde v. Inhab. of Melrose, 10 Allen (Mass.) 49; Rice v. Auditor Gen., 30 Mich. 12; Hart v. Henderson, 17 Mich. 218; Hamilton v. Valiant, 30 Md. 139; City v. Humphrey, 84 Ind. 469; McWhinney v. City, 98 Ind. 182; Hilgenberg v. Commissioners, (Ind.) 8 N. E. Rep. 294; State v. Casteel, (Ind.) 11 N. E. Rep. 219.
The statutes in force at the time of the purchase in question upon the completion of the act of purchase by the plaintiff, constituted a contract between the state and the purchaser, upon which the purchaser was entitled to reply, and which the state or the county, acting as a quasi municipal sub-division of the state, is bound to respect and execute, and in the event of the failure of the title under such purchase, arising from want of jurisdiction to tax the land, the purchaser may recover his purchase money with the interest allowed by the statute, from the defendant. Corbin v. Commissioners, 1 McCrary, (C. C. Rep. U.§8.) 621; Wheeler v. County auditor, Washington Co., (Minn.) 15 N. W. Rep. 375; Dickeman v. Dickeman, 11 Paige, 484; Fleming v. Roverud, (Minn.) 15 N. W. Rep. 119; Halibert v. Porter, (Minn.) 11 N. W. Rep. 84; Cooley on taxation, 370; Chapman v. Brooklyn, supra.
Chapter 28 of the Political Code of 1877, was adopted in the Territory of Dakota in 1868, from the Revised Laws of Nebraska of 1866, and was adopted substantially, without change.
The provisions of the Iowa Code of 1851, were adopted by the Territory of Nebraska in 1858, and contained many of the provisions of our present statutes; subsequent legislation by the
