numerous authorities justifies this view. Frost v. Flick, 1 Dak. 131, 46 N. W. Rep. 508; Moore v. Wayman, 107 Ill. 192; Hagaman v. Commissioners, 19 Kan. 394; Knox v. Dunn, 22 Kan. 683; Albany, etc., v. Auditor, 37 Mich. 391; Iowa Railroad Land Co. v. Sac Co., 39 Iowa, 124-128; Iowa Railroad Land Co. v. Carroll Co., Id 151-154; Challis v. Atchison Co., 15 Kan. 49; City of Lawrence v. Killam, 11 Kan. 499; Railroad Co. v. Tontz, 29 Kan. 460; DuPage Co. v. Jenks, 65 Ill. 275; Nunda v. Chrystal Lake, 79 Ill. 311-314; Trust Co. v. Weber, 96 Ill. 346-357; Parks v. Watson, 20 Fed. Rep. 764.
The other two allegations—that the county commissioners did not attach to the original and duplicate lists their warrants requiring the treasurer to collect the taxes; and that the county treasurer had not given the proper notice to acquire jurisdiction to sell the property for such taxes—are, under all the authorities, insufficient to warrant a restraint of the tax proceedings without payment or tender of the tax. A cloud on the title from illegal tax proceedings will ordinarily warrant a resort to equity to remove it. But a dominant principle of equity intervenes, and requires equity to be done by the taxpayer before he ean secure the relief sought. He must, when the tax is valid in equity, pay or tender the tax as a condition precedent to his right of action. In all such cases our statute has substituted a judgment for such taxes in the action in place of tender or payment. It is thus equity is to be done by the taxpayer. The statute provides that the court shall in such cases render judgment for the tax. It treats the judgment for the tax as a substitute for the tax itself. The tax proceedings, being such as to cast or threaten to cast a cloud on the title, must be set aside, but the tax itscif, with its penalties and interest, must be embodied in a judgment, on which execution shall issue as soon as the tax isdelinquent. The penalties and interest which must be embodied in the judgment when rendered after the tax has become delinquent are those prescribed by law in cases of delinquency. § 1643, Comp. Laws; Farrington v. Investment Co., 1 N. B. 102.
The argument that the county has estopped itself from claiming the tax upon these lands because of having received its
