a reply to this proceeding the intervenor insisted the taxes were paid voluntarily by the defendants, and that the lands were not taxable as against the intervenor, because the county was claiming title thereto at the time said taxes were levied and paid.

The court quieted the title in the intervenor, but refused to charge the lands with the amount paid as taxes. The first portion of the decree is satisfactory to both parties, but the defendants have appealed from the latter.

I. N. Kidder and E. S. Bailey, for appellants.

Harvey & Lehman, for appellee.

SEEVERS, J. 1. The lands were conveyed by the county to the intervenor in 1863, and from that time they were taxable, unless the county had done something which estopped it from levying taxes thereon. The taxes in question were levied in 1866, and every year thereafter until 1876, inclusive, and were paid by the defendants before they became delinquent. Because the county brought an action to set aside said conveyance, on the ground it had been fraudulently obtained, which was pending at the time of the levy, it was insisted the lands were not taxable. By its act the county had divested itself of the title, and until said action was determined the intervenor was the owner of a taxable title. The county did not withold anything from the intervenor it had contracted to give, but simply asserted and exercised the right to levy taxes. This might possibly estop the county from claiming title. It was so held in Anderson County v. Am. Em. Co. 40 Iowa, 460; and to the same effect is Adams County v. B. & M. R. Co. 39 Iowa, 507. It was also held in Iowa Railroad Land Company v. Story County, 36 Iowa, 50, that the county could not refuse to convey as it had contracted to do, and at the same time levy and collect taxes on the land it had obligated itself to convey. Taxes levied

under such circumstances were declared to be void. To the same effect is Calhoun County v. American Emigrant Company, 93 U. S. 124. We are now asked to go a step further, and hold, if the county brings an action to set aside a conveyance alleged to have been obtained by fraud, that it is estopped from levying taxes on the land conveyed. The proposition amounts to this: That if the county seeks to set aside the conveyance it is estopped therein by a levy of taxes, and if it levies taxes it is estopped from bringing an action to set aside the conveyance. We do not believe the estoppel should work both ways. Under the circumstances the county

had done all it contracted to do. It never agreed not to bring an action to set aside the conveyance on the ground of fraud. The intervenor received the conveyance subject to this contingency. The lands were therefore taxable. To exercise this right, it may be conceded, was inconsistent with the claim made to the title; but we see no reason why this should render the taxes void, or estop the county from making the levy. The intervenor held a conveyance valid on its face.

Why, therefore, should it be permitted to say the lands were not taxable? Suppose the intervenor had claimed, in the action brought by the county to set aside the conveyance, that it was entitled to have its title quieted, and also that the taxes should be decreed to be void. Will it be pretended both could be granted? We think not. As the former has been granted, because asked by the intervenor, it should pay the taxes.

2. The lands either passed to the county under the swampland grant, and by the conveyance to the intervenor, or to the defendants under the railroad grant. The officers of the general government, charged with such duty, decided they passed to the defendants under the latter grant, and certified accordingly in July, 1867. The lands were taxable, in case they belonged to the defendants, from the time they were earned; and as against the defendants the certificate constituted sufficient evidence of this fact. They were assessed to the defendants, as was right and proper, because they were the owners of what may, for the purposes of this case, be styled the legal title. The plaintiffs were the owners of an equitable title, which they appealed to the courts to sustain, and hold that it was superior to that held by the defendants. This could only be done by a showing that the lands were of the swampy character contemplated by the act of congress. This involved the determination of a question of fact. When found by the court, and the decree entered, the title of the intervenor related back to the date of the swamp land grant.

The defendants being the owners of a taxable title paid the taxes. This it was their duty to do unless they had knowledge of the swampy character of the lands, which is not pretended. The payments were, therefore, made in good faith, under a belief of ownership. This was a mistake, but not of law. The mistake was one of fact, because it depended on the swampy character of the land. The intervenor being the owner in fact, it was its duty to see the lands

were properly assessed and to pay the taxes. It is not pretended any efforts were made in this direction. The intervenor was bound to know the lands were taxable and that the taxes were being paid by some one. Ordinary diligence would have developed by whom. The payments made by the defendants inured to the benefit of the intervenor. Now the latter asks that the title of the defendant be set aside and that the equitable title be declared superior thereto, and refuses to reimburse the defendants for money paid for its use, and by which intervenor was directly benefited. As the intervenor sought the interposition of equity and thereby accomplished this result, it must do equity. This old and familiar principle applies with full force, and it would be contrary to every principle of equity and justice, under the the circumstances, not to enforce it. The principle that he that asks equity must do equity, was recognized and enforced in Orr v. Travancier, 21 Iowa, 68; Hunt v. Rowland, 28 Iowa, 349; and Stuart v. Corbin, 38 Iowa, 371. It will not do to say these cases were based exclusively on the statute. The contrary clearly appears. The subsequent cases of Everett v. Beebe, 37 Iowa, 452; Light v. West, 42 Iowa, 138; and Sexton v. Hendershott, 45 Iowa, 161, were based on the statute, because the statutory interest and penalty were claimed and accorded. The same principle was enforced in Nowler v. Cort, 1 Ohio, 220, and Redmond v. Pakenham, 66 Ill. 434, and its existence was at least clearly recognized in Ingles v. Patterson, 36 Wis. 373, and White v. Rush, 58 Mo. 105. There cannot, we think, be any distinction drawn between these cases and that at bar.

Garrigan v. Knight, 47 Iowa, (153,) 525, is not applicable, because it was an action at law. It is supposed the Homestead Company v. Valley Railroad, 17 Wall. 153, was an action in equity. But the court found, in that case, the payments were made "in ignorance of the law," and it is said this is no ground of recovery. Conceding this to be true, that case is clearly distinguishable from that at bar, because we find the payments were made under a mistake of fact, and in pursuance of a duty resting, under the circumstance, on the defendants. As being opposed to the rule referred to, counsel for the appellee cite Reed et al. v. Tyler, 56 Ill. 288; Barnett v. Cline, 60 Ill. 205; and Goodwin v. Rice, NORTHWESTERN REPORTER vol. 1, p. 257, (Minn. 19.) The two first cases are in accord with the rule as applied to the case at bar, as we understand them, and, to say the least, the last

in no manner militates against it. It was competent for the defendants to prove the payment of taxes by any one having knowledge of that fact. The court did not look into the evidence and ascertain the amount chargeable on the land, and it can be much better done there than here. The decree below is reversed, and the district court directed to ascertain, in such manner as may be deemed best, the amounts paid and the times of payment, and make the same, with interest from the respective payments, a charge upon the lands, and provide in the decree, in some proper manner, for the payment of the same, before the title shall absolutely vest in the intervenor.

Reversed.

S. F. MARTIN, Appellant, vs. M. J. STEARNS and others,

Appellees.

Filed October 28, 1879.

The surrender of leased premises is a yielding up of the estate of the tenant to the landlord, and must be the result of an agreement, or acts equivalent to an agreement. Where, before accepting the keys and leasing the property to another tenant, the landlord commenced an action to preserve his lien for future rents, held there was no surrender. The lien of a landlord, under section 2017 of the Code, extends to rents to grow due as well as rent already due, and attaches from the commencement of the lease as to all property then on the premises, and as to property subsequently brought upon the premises from the time it is so brought.-[Ed.

Appeal from Cass district court.

Action for an injunction to restrain the defendants from selling a stock of goods. The plaintiff claims to have a landlord's lien upon the goods. In October, 1877, the plaintiff leased a store-room to the defendant Stearns for the period of two years, at a rental of $55, payable monthly in advance. Stearns placed a stock of goods in the store-room, and proceeded to sell the same at retail, in the ordinary method of such trade, until February, 1878. Prior to that time he had purchased goods of the defendants Smith & Crittenden, and, to secure them, had given them a chattel mortgage upon the stock, the same being executed after the commencement of the lease. In February, 1878, Stearns' circumstances became such that Smith & Crittenden, with the consent of Stearns, placed a clerk in the store for the purpose of securing the payment of their claim from the proceeds of the sales. In the meantime the stock became greatly reduced and Stearns became insolvent. The plaintiff avers that the sales were being forced by unusual processes, and beyond the due course

of retail trade. All rent, however, at this time had been paid monthly in advance, according to the terms of the lease; but the plaintiff became apprehensive that the stock would become exhausted in the payment of Smith & Crittenden, and that nothing would be left for the security of the rent that was yet to accrue. He accordingly, in the month of February, 1878, brought this action for an injunction to restrain the defendants from selling the goods, or any part thereof, until the rent for the entire term should be paid. A preliminary injunction was granted. The defendants Smith & Crittenden moved to dissolve, and at the same time offered to give security for the plaintiff's protection. The court ordered that the injunction be dissolved upon Smith & Crittenden filing a bond, in the sum of $1,200, conditioned that they would return the goods if it should be adjudged that they were subject to a lien in favor of the plaintiff, or that they would discharge the lien. The bond being filed the injunction was dissolved, and the goods were removed by Smith & Crittenden and subjected to the payment of their claim.

Upon the removal of the goods, and before any rent was overdue or had accrued, Stearns vacated the store and so notified the plaintiff, and left the keys of the store with him. The plaintiff, in the exercise of reasonable diligence, leased the store after a few months, at a reduced rent. The defendants answered averring that the premises and lease were surrendered while no rent was overdue or had accrued. Upon the hearing the court found that there had been a surrender as alleged and dismissed the plaintiff's petition. The plaintiff appeals.

Chapman & Chapman and H. G. Curtice, for appellant.

Sapp, Lyman & Ament and Temple & Phelps, for appellees. ROTHROCK, J. A surrender, as the term is used in the law of landlord and tenant, is the yielding up of the estate to the landlord so that the leasehold interest becomes extinct by mutual agreement between the parties. Beall v. White, 4 Otto, 389. The lease being terminated by agreement the lessee is, of course, discharged except for rent already accrued. To constitute such agreement it is not necessary that express words should be used to that effect. It is sufficient if the reasonable inference from the acts of the parties, and the circumstances under which they are performed, is that such was the understanding. Hill v. Robinson, 23 Mich. 24. But where acts are relied upon as evincing the understanding, they should be such as are not easily referable to a different