
    AMENDMENT AFTER. R.EVER.SAL.
    Circuit Court of Hamilton County.
    Estella B. Hieatt v. Susan W. Simpson et al. 
    
    Decided, April 10, 1909.
    
      Pleading> — Authority to Amend after Reversal by the Supreme Gotirt— Payment of Taxes under a Mistalce of Law but with Knowledge of the Pacts. ■
    Where tile Supreme Court sustains a demurrer and remands the case ■for further proceedings, the circuit court has authority to allow an amendment to j;he pleading to which the demurrer was'directed.
    
      W. T. Porter, for plaintiff.
    
      Wm. Worthington and Outcalt & Hickenlooper, contra.
    Giffbn, P. J.; Smith, J., and Swing, J., concur.
    
      
       For the common pleas and circuit court opinions in this case prior to its being taken to the Supreme Court, see 5 N. P.—N. S., 513, and 4 O. L. R., 136.
    
   The Supreme Court having rendered the judgment that this court should have rendered, to-wit, sustained the demurrer to the answer, and remanded the cause to this court for further proceedings according to law, the authority to allow an amendment to the answer, under Section 5116, Revised Statutes, is the same as if this court had, instead of overruling the demurrer, sustained the same. The case of Covington & Cincinnati Bridge Company v. Sargent and other like cases apply only where final judgment has been rendered.

The amendment to the answer presented contains facts sufficient to show a forfeiture under Section 2852, Revised Statutes, of at least the ten and one-half acres of land sold to Van Tress.

The payment of taxes under a mistake of law with full knowledge of the facts, can not, when made* voluntarily, be recovered.

It is unnecessary to now determine how much, if any, ivas so paid, or whether the other real estate was forfeited to the persons next entitled thereto in remainder, so long as the proposed amendment states a good though partial defense. If counsel for defendants elect to accept the offer of plaintiff to allow a lien for taxes paid -by them there will be no difficulty in entering a decree to that effect after proper pleadings are filed.

Leave to file amendment granted.  