#### *A.*B. Knight v. Hawkeye Loan *&*Brokerage Company, Appellant.

Taxation: sale of land: payment. A sale of land for taxes 1 constitutes a payment of the tax, and a showing that it was otherwise paid by the plaintiif in an actipn to set aside. the tax deed is not necessary.

Proof of Title. The introduction of the records of the recorder’s 2 office as exhibited by an abstract of title showing a chain from the government is sufficient in the absence of an objection upon the trial to maintain an action to set aside a tax deed.

Scandalous Argument: power to strike. Power to strike out a 3 scandalous argument will not, except in an extreme case, be exercised so as to defeat justice.

*Appeal from Linn District Court.*— Hon. Wm. G. Thompson, Judge.

Monday, June 1, 1903.

Action to set aside a tax deed on the ground that there had been no valid tax sale, and that redemption notice had not been given. Decree for plaintiff. Defendant appeals.

—Affirmed.

*William C. Clark*for appellant.

*Preston ds Moffit*and *J. M. Thompson*for appellee.

Per Curiam.

*75
      i. Taxes.-sale mentpay
      *74The appeal is triable *de novo,*but errors are also assigned in overruling a motion for a continuance, and in overruling a demurrer to plaintiff’s Xietition. As to the continuance, which was asked for the-purpose of securing the attendance of a witness, it was properly denied, for the reason that no sufficient showing of, diligence was made. The demurrer was general, and was: *75perhaps, sufficient to raise the objection argued, thatplain-tiff did not allege that the taxes on the property had been paid, as required by Code, section 1445. But after it was overruled the defendant answered and proceeded to trial, and on the trial it appeared that the only taxes unpaid were those for which the sale in controversy was made. This tax had been paid by the sale, and it was not incumbent on plaintiff to show that it had been paid by him.

2 proof of nue. It is further contended that planitiff on the trial did not establish a fee simple title in himself, but he did announce the introduction in evidence of the records in the recorder’s office, as shown by an abstract 0f title, indicating a chain of title from the government down to the plaintiff. No objection being made to the introduction or sufficiency of this evidence, and the question not being subsequently raised in any way during the trial that plaintiff’s showing of title was not sufficient, we think defendant cannot now complain. To reverse the decree on this ground would be practically to defeat appellee on a point not presented in any way to the trial court.

On the merits of the case, it is contended by counsel for appellant., who did not represent him on the trial in the lower court, that the evidence did not justify the finding of the trial judge that the redemption notice was never served upon plaintiff. This is exclusively a question of fact,’ depending upon the weight to be given. to the testimony of the different witnesses, among whom there was an irreconcilable conflict as to what took place at the time when it is claimed for defendant that.the notice was served. We are satisfied that the evidence was sufficient to show that the notice was not served, notwithstanding the affidavit of service, and the testimony of witnesses as to the fact that such service was made. The finding of *76the trial court on this point is in accordance with tho weight of the evidence.

3 scandalous stake.A motion to strike portions of the argument of counsel for appellee, on the ground that it is “abusive, unprovoked, unfounded, and impertinent,” is submitted with oase- The portion of the argument complained of certainly has been Of no possible benefit or advantage to the appellee, and it is to be regretted that counsel have indulged in insinuations with reference to an attorney of this court for which there is no foundation whatever in the record. We do not feel justified in striking out the entire argument, for that would be art-injury to the party himself, and might tend to the defeat of justice. This court must use some discretion as to how far a wrong result should be made possible through the indiscretion of an attorney. We do not feel warranted in visiting such a penalty upon the party in this case. There would be no possible advantage to appellant in striking out the language complained of, for the wrong, if any, has worked no injury to him. While we have the undoubted power to strike out a scandalous argument, we must exercise discretion, in using it, and, save in an extreme case, would not feel inclined to use it in such a way as to defeat ultimate justice. We see no necessity for taking further notice of this motion.

The decree of the trial court is aeetiimed.