#### G. W. Pitts, Appellee, v. M. E. Lewis *et al.,*Appellants.

1. Tax Title: appeal : record. A stipulation between parties to a cause, during the trial thereof, that certain evidence may be ■ ireceived and used in such action so far as the same may be relevant, will not make such evidence a part of the record when it is 'neither *offered*nor used in fact upon the trial.

2.-: evidence. After the cause was submitted, and was held under advisement, the court permitted the defendants, on notice to the plaintiff, to file affidavits of parties who had testified upon the trial, that the originals of certain deeds, of which certified copies had been offered in evidence, were hot in their possession or control. *Held,*that the reception of the affidavits was a matter resting in the discretion of the court, and no abuse of discretion was shown.

*523.-: validity : attack. Where, in a contest over the title to-real estate, the respective parties claim under different tax deeds, and there is neither allegation nor proof of the payment of taxes by either party, and neither has demurred to the pleading of the other, both parties will be deemed to have waived all question on this-subject.

4.-:-: pleading-. An allegation of ownership under a tax deed by one party to a cause, and a general denial by the opposite party, puts in issue every question as to the validity of such deed that is open to investigation.

5. -: - : ORGANIZATION OF COUNTIES: JUDICIAL NOTICE. Courts will take judicial notice of the organization of counties within the state.

0. -: -. A tax deed issued by a county in pursuance of an unauthorized sale of land for taxes owing another county is void.

*Appeal from Sioux District Court.*— Hon. C. H. Lewis, Judge.

Saturday, October 11, 1890.

ActioN by equitable proceeding to quiet the title to certain land in the plaintiff, as against the defendants, M. E. Lewis, C. A. Dodge, Austin Corbin and Henry Kamp. The plaintiff claims ownership and title under a tax deed from the treasurer of Sioux county to P. M. Hubbeli, executed March *12,*1864, upon a sale made November 6, 1860, Hubbeli having conveyed said land to Franklin Keeney, who thereafter conveyed the same to the plaintiff. The defendants deny that plaintiff is owner of said land, and allege that the same was sold on August 3,1868, by the treasurer of said county, for delinquent taxes, to one William H. Gurley, and that on February 16, 1872, a treasurer’s deed was executed to one Aleck J ohnson, to whom Gurley had assigned his certifícate; that on July *5,*1872, said Johnson conveyed to Austin Corbin, who conveyed to 'M. E. Lewis and C. A. Dodge, who thereafter conveyed said land to the defendant Kamp, who still owns and is in possession of the same. Defendants allege that more than five years have elapsed since the execution of said tax deed, and *53prior to tlie commencement of this suit, and that, by reason thereof the plaintiff was, when he commenced this suit, barred of his right to recover said land. The plaintiff, in reply, denies that there was a sale to Gurley ; that a tax deed was executed and recorded ; that the treasurer of said county had any authority to sell said premises on the third day of August, 1868; and alleges that the adjournment of the sale was for more than two months ; that there was no assessment or levy of taxes on said land for either of the years 1860 to 1866, inclusive; that there was no board of supervisors or assessor for said county, authorized to act; that no delinquent taxes were brought forward on the tax list of 1866, or prior years ; and that more than five years have elapsed since the execution and recording of the tax deed under which plaintiff claims; by reason whereof, defendants are barred from asserting any claim adverse to plaintiff. The case being' fully submitted, decree was entered in favor of plaintiff, granting thé relief prayed for. Defendants appeal.

*Struhle &*Siiger, for appellants.

*Pitts & Kessey,*for appellee.

GiveN, J.

i tax title- ap-pean recorrí, I. Question is made whether we have before us all the evidence offered on the trial below, In certifying the case certain documentary evidence used on the trial was set forth in the transcript by copy, the original documents not being on file in the clerk’s office. In obedience to a rule of this court upon the clerk, he recently sent up certain documents in original form, which, we think, are sufficiently identified as the same documents used in evidence on the trial. On the trial it was stipulated “ that the evidence taken in the case of E. S. Ellsworth *v.*E.W. Ross *el at.*may be used in this action as far as the same relates to the tax deed in controversy.” No part of that testimony is included in the record in this case. The stipulation does not of itself make that evidence, or any *54part of it, evidence in this case. It provides that it may be used, but it does not appear that either party availed himself of that privilege. Surely it is not the province of this court to now select from the record in that case evidence, however pertinent to this, not shown to have been offered and used on the trial. We think the record before us contains, in proper form, all evidence offered on the trial of this case.

2 _-evidence II. On the trial, the defendant introduced certified copies of certain deeds for the purpose of showing the defendant Kamp. After the case was submitted, and while held under advisement, the defendants, on notice to plaintiff, were permitted, over plaintiff’s objection, to file the affidavits of defendants Kamp, Lewis and Dodge, to the effect that they did not have the original deeds, of which copies had been offered, in their possession or control. It was shown by counter-affidavit that Lewis and Dodge were present, and testified on the trial, and that Kamp was but a few miles distant at the time. It is conceded that it was within the discretion of the court whether to receive these affidavits ; but it is contended that to receive them under the circumstances was an abuse of that discretion. We do not discover that any prejudice resulted from the action of the court, nor that there is any abuse of discretion.'

3. —: validity: attack. III. Each party claims under tax deed, and disputes the right of the other to question the validity of the deed under which he claims. If the deed under which plaintiff claims is valid, then he had title to the land at the time of the tax sale under which defendants claim, as such deed not only conveys the interests of the owner of the patent title, but also of the state and county. Such title, however, may be divested by a subsequent tax sale and deed. If the tax deed under which defendants claim title is valid, then they may question the validity of plaintiff’s title, because their title was obtained from the state after the sale under which plaintiff claims. To determine the rights of either to question the title of the other, we *55must determine the validity of his title. A condition upon which a party may question- a tax deed executed in conformity with section 897 of the Code is upon showing that he, or those under whom he claims, have paid all taxes due upon the property. There is neither allegation nor proof of the payment of taxes by either party ; and, as neither has demurred to the pleading of the other, they will be taken as having waived all question on this subject. See *Adams v. Burdick,*68 Iowa, 666, and *Adams v. Snow,*65 Iowa, 436.

4_._. pieadmg. IV. Appellants contend that the tax deed under which plaintiff claims is void, because the taxes for which the sale was made were due to Wood-bury county, and not to Sioux county. Appellee contends that no such issue is tendered in the pleadings. Appellee alleges ownership under the tax deed to Hubbell; and defendants deny generally, and thereby put in issue every question as to validity of that deed that is open to investigation.

‘ organization judicial ‘ V. It is argued that the court cannot take judicial notice of the organization of Sioux county, and that there is no evidence of its organization. If courts may not take judicial notice of the organization of the counties of the state, then the fact of such organization must be established in each case to show jurisdiction. *Hard v. City of Decorah,*43 Iowa, 313, is relied upon. In that case it was held that courts would not take judicial notice of the incorporation of towns and villages under the general incorporation act. Following the statement that the courts will take judicial notice of the general incorporation acts, the court says : ‘ ‘ But the fact that a particular village or town has availed itself of the provision of these statutes, and become incorporated as they authorize, is private in its character. The character of county organizations, and their relations to the state and its courts, are not private, but such as of necessity must be judicially noticed and recognized by the courts. As bearing more or less directly upon this subject, see *McGill v. State,*25 Tex. App. 499; *Evans v. Kilby, 7**56S. E. Rep. (Ga.) 226; *Kansas City, F. S. & G. Ry. Co. v. Burge,*40 Kan. 736; 21 Pac. Rep. 589; *Com. v. Fitz*patrick, 15 Atl. Rep. (Pa.) 466; *State v. Glasgow, 2*Am. Dec. 629; *County of Rock Island v. Steele,*31 Ill. 453; *Gooding v. Morgan,*70 Ill. 275; *People v. Robinson,*17 Cal. 363; *People v. Telford,*23 N. W. Rep. 213. By section 41, chapter 9, Acts, Third General Assembly, Sioux county was created, and by section 14, chapter 16, Acts, Fourth General Assembly, was attached to Wahkaw county (the name of which was after-wards changed to Woodbury county), for judicial, election and revenue purposes. Mr. E. E. Campbell, called and examined by the plaintiff, testified, on redirect examination, and without objection, that Sioux county was first organized February 15, 1860. This testimony being admitted without objection, and unquestioned in the record, we accept it as a fact proven that Sioux county became a separate and independent organization from Woodbury county, February, I860.

__ VT. We have the fact of the organization of' Sioux county in February, 1860, before us not only as a matter of which we will take judicial notice, but as a matter established by direct evidence. The case, therefore, is identical in its facts with that of *Hilliard v. Griffin,*72 Iowa, 331, and, following that case, we hold that Sioux county had no authority to sell to Hubbell, and that the deed executed in pursuance of that sale is void. It follows from this conclusion that the plaintiff is not entitled to- the relief demanded, and that his petition should be dismissed. This view of the case renders it unnecessary that we consider the other questions discussed. Reversed.-