Simon v. Merritt. These instructions are erroneous. They leave out of view the well-settled doctrine that if Leggett, the transferrer of plaintiff, was such an innocent and bona fide holder of the paper, that in his hands it could have been enforced against defendant, plaintiff, although he may have taken the note charged, with notice of its infirmities, may recover in this action. If Leggett so held the note, his title and rights thereto were such that they could not have been defeated by defendant. In the transfer, the title and rights held by him passed to plaintiff. The notice which plaintiff may have had of the fraud in the original transaction does not defeat the rights he acquired by the transfer. One reason of the rule is obvious. The maker of the note would be liable to the transferrer; his condition is made no harder by the note coming into the hands of one having notice of its infirmities. We do not understand that there is any conflict in the authorities upon this point. Hoskell & Gervey v. Whitmore, 19 Me. 102; Smith v. Hiscock, 14 id. 449; Prentice & Messenger v. Zane, 2 Gratt. 262; Boyd v. McCann, 10 Md. 118; Howell v. Crane, 12 La. An. 126. See authorities cited in Story on Prom. Notes, & 191. The instructions above set out, being in conflict with this doctrine, ought not to have been given. For this reason the judgment of the district court is Reversed. Rhodes v. Sexton & Son. Pettit v. Same. RHODES V. SEXTON & SON. PETTIT V. SAME. 1. Tax sale: ILLEGAL TAX. The fact that the taxes for one of the years for which land was sold were illegal will not render the sale invalid if the taxes for the other years were legal. 2. WARRANT. A warrant of sale to the treasurer is not essential to the validity of a tax sale. Appeal from Wapello District Court. SATURDAY, FEBRUARY 24. THESE causes present the same questions. They are both actions to set aside tax deeds held by defendants. They are both equity causes triable by the first method, and were so tried in the district court, and judgment rendered in each case for plaintiff. Defendants appeal. J. R. Reed and I. N. Mast for the appellants. Hendershott & Burton for the appellees. 1. TAX SALE: MILLER, J.-The tax sales occurred on the 19th day of November, 1863, and it is agreed by the parties that the lands were sold in forty-acre tracts, severally, illegal tax. by one offer and one bid for the entire taxes due on each forty, severally, for the years 1860, 1861 and 1862; that on the 23d day of April, 1867, defendants obtained their deeds from the treasurer of the county. No objections are made to the form or regularity of the deeds themselves; but it is alleged in the petitions respectively that the deeds are void on several grounds stated. The first urged in argument is that for one of the years for which the lands were sold no taxes were levied thereon. It is insisted by appellee that inasmuch as the lands Rhodes v. Sexton & Son. Pettit v. Same, were sold upon one offer, and one bid upon each tract, for one integral sum, the deeds are void, although for some of the years some part of the taxes were legal; and they cite a number of cases to sustain this position. However sound this view might be on general principles, our statute expressly provides, that where "a part of the tax for which the land is sold is illegal it shall not affect the validity of the sale or right and title conveyed by the treasurer's deed, provided the property was subject to taxation for any of the purposes for which any portion of the taxes for which the land was sold was levied; that the taxes were not paid before sale, and that the property has not been redeemed from sale." And it has been accordingly held by this court that where a tax sale is made for an aggregate tax, a part of which only is illegal, such illegal tax will not affect the validity of the sale or title conveyed by the treasurer's deed. Eldridge v. Kuehl, 27 Iowa, 160; Parker v. Sexton & Son, 29 id. 421. See Revision of 1860, §§ 753, 762. The rule insisted upon by appellees' counsel, viz.: that if the sale is illegal as to any portion of the tax, it is illegal as to the whole, and the deed therefore void, is reversed by express statutory provisions, establishing it as a rule that if the sale is legal as to any part of the tax, the sale is valid. It is our duty to follow the statute, unless it be found to conflict with some provision of the constitution, and that it does not was held in Parker v. Sexton & Son, supra. 2. warrant. II. It is next urged that the deeds are void, for the reasons that the tax warrant to the treasurer for the year 1860 had no seal attached; that those for the years 1861 and 1862 had the seal of the district court attached, and were issued by the clerk of the board of supervisors without any special direction of the board. These facts are admitted by appellants' counsel. In Parker v. Sexton & Son, we held that the tax war 33 542 f125 376 Woodward v. Willard. rant is not an essential step or fact in a tax sale; that the power of the treasurer to sell is derived from the statute directly, and it is immaterial whether the tax warrant has a seal, or was issued by order of the board of supervisors, or even whether there was any tax warrant at all, and this holding was adhered to in the same case on petition for rehearing, where the question was ably argued and fully considered. Thus all the questions presented have been adjudicated and settled, in the cases referred to, adversely to the plaintiffs. The judgments in these cases will be reversed and the causes remanded, with directions to the district court to enter decrees dismissing plaintiff's petition in each case; or if the appellants so elect such decrees will be rendered in this court. Reversed. WOODWARD V. WILLARD. 1. Foreign judgment: JURISDICTION. That the attorneys who appeared and made defense in the original action were not authorized by the defendant so to do would not affect the validity of the judgment, if it appears that notice of the pendency of the suit was duly served upon defendant. 2. Accord and satisfaction: UNEXECUTED. An unexecuted agreement for accord and satisfaction is no defense Appeal from Pottawattamie District Court. WEDNESDAY, MARCH 27. THIS action was brought on the 11th day of November, 1869, upon a judgment rendered by the district court of Douglas county, State of Nebraska, on the 25th day of October, 1867, for the sum of $319 damages, and $31.35 Woodward v. Willard. costs, in favor of one Edward P. Child and against the defendant herein. The plaintiff avers that the judgment was assigned to him by the plaintiff therein, on the 5th day of September, 1868, and said assignment was entered upon the record of said judgment. A copy of the said judgment with all the papers and proceedings in the case wherein it was rendered, together with a copy of the assignment thereof to this plaintiff, is annexed to the petition. The defendant for answer denies that there is any such judgment; denies that any notice was ever served on him of the pendency of such suit; denies that he ever appeared therein; denies that the attorney who appeared for him had any authority so to appear; denies that the judgment has been assigned to plaintiff, or that he is the owner of it, and avers that the appearance made therein for this defendant was by the fraud and connivance of the plaintiff therein. The cause was tried to a jury. After the evidence was closed the defendant asked and obtained leave to, and did file an amendment to his answer, setting up an alleged settlement of the cause of action upon which the pretended judgment was recovered, prior to its rendition, by reason of which he failed to defend, and the plaintiff, by that fraud, procured it. The jury found a verdict for the defendant. The plaintiff appeals. The further necessary facts are stated in the opinion. Sapp, Lyman & Hanna for the appellant: I. Evidence of a settlement of the original controversy is not admissible in an action on a judgment obtained in a sister State. The defendant having failed to avail himself of his rights by an appeal or writ of error, and having submitted to the jurisdiction of the court wherein judg ment was obtained, cannot afterward be heard to say that the original suit was settled. His own negligence, and want of prompt action to have |