10, 1893), 34 Pac. Rep. 724 (not reported in Cal. Reports).

The second proposition is supported by reference to Rollins v. Wright, 93 Cal. 395.

The effect of an admission of the genuineness and due execution of an instrument pleaded by a defendant, and not denied, as provided by section 448 of the Code of Civil Procedure, is to avoid the necessity of proof of its genuineness and due execution, and nothing more; and whether it is proven or its execution is admitted its terms and legal effect are to be determined by an inspection of the instrument. It stands as an exponent of the facts therein set out, to be construed by the court, and the conclusions of law are to be deduced therefrom. (Burnett v. Stearns, 33 Cal. 468.) The question, then, remains, does the tax deed, upon its face, show a state of facts from which to conclude, as matter of law, that the legal title to the premises vested in defendant?

The tax deed in question purports to be a conveyance of real estate sold for the nonpayment of city taxes for the year 1890 and 1891, is executed by Frank Misenheimer, tax collector of the city of El Paso de Robles, county of San Luis Obispo, and most of the recitals in the deed indicate that the property therein described was sold for delinquent taxes levied by said city, yet among the recitals of the deed it is said "levy was duly made, according to law, upon the property, of which description is first hereinafter given, for taxes due to the state of California and to the city of El Paso de Robles for the year 1890," etc. There is no explanation of this statement in the record or in the brief of appellant. We can only surmise that it is a mistake arising from the use of a blank deed prepared for the collector of state and county taxes, and that the word "county" was erased, and the word "city" substituted, while the words "due to the state of California" were inadvertently left in the deed.

We pass the question involved in this statement for the reason that we think there is another and potent

reason why the judgment and order appealed from must be affirmed.

By the act to provide for the organization, incorporation, and government of municipal corporations, approved March 13, 1883 (Stats. 1883, p. 93), authority is given to "the board of trustees" to provide, by ordinance, a system for the assessment, levy, and collection of all city or town taxes, which system shall conform as nearly as may be to the provisions of the state laws on the same subject, except as to dates and the officers by whom the several acts are to be performed; and by section 871 of the same act it is provided that "All deeds made upon any sale of property for taxes or special assessments, under the provisions of this chapter (chapter 7, relating to municipal corporations of the sixth class), shall have the same force and effect in evidence as is or may hereafter be provided by law for deeds for property sold for nonpayment of state or county taxes."

Under section 3786 of the Political Code tax deeds are made primary (prima facie) evidence that: "1. The property was assessed as required by law; 2. The property was equalized as required by law; 3. The taxes were levied in accordance with law; 4. The taxes were not paid; 5. At a proper time and place the property was sold as prescribed by law, and by the proper officer; 6. The property was not redeemed; 7. The person who executed the deed was the proper officer; 8. Where the real estate was sold to pay taxes on personal property, that the real estate belonged to the person liable to pay the tax."

By the next section the tax deed is made conclusive evidence (except in case of actual fraud) of the regularity of all other proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed.

These provisions were upheld by this court in Rollins v. Wright, supra.

These presumptions of the regularity of the proceedings leading up to the execution of a tax deed proceed upon the theory that the revenue laws of the state pro

vide the methods whereby property is assessed for taxation, taxes levied, and that, when not paid, the real estate upon which such taxes become a lien may be sold to realize the amount due.

Of these laws courts take judicial notice, and, if the tax deed recites the performance of the acts required by law, the burden of proving a noncompliance is cast upon those who attack the regularity of the several essential acts.

But we cannot take judicial notice of the ordinances of municipal corporations, or of the time when, if passed, they take effect. (Lucas v. San Francisco, 7 Cal. 475; Harker v. Mayor etc. of New York, 17 Wend. 199; Haven v. New Hampshire Asylum, 13 N. H. 532; City of Napa v. Easterby, 61 Cal. 517.)

So far as appears from the record the tax proceedings were unsupported by an ordinance of the municipal corporation, and entirely without authority of law.

We are of the opinion that the passage and existence of an ordinance authorizing the tax proceedings should have been proven as a prerequisite to the deed becoming prima facie evidence of a compliance with such proceedings.

Again, if we assume that the recitals in the deed are prima facie evidence, not only of the facts they recite, but of laws authorizing the performance of such acts, then we must assume from such recitals that notice of the sale for delinquent taxes was required to be given not less than twenty-one and not more than twenty-eight days, as is provided by section 3768 of the Political Code in cases of sales for state and county taxes.

Yet, while the recital in the deed states that the notice as given was not less than twenty-one nor more than twentyeight days, still, when it gives the date of the first publication of such notice, which was February 11, 1891, and the date of sale, which was to occur, and did occur, on the third day of March, 1891, it may be seen that a notice. of only twenty days was given of the sale.

That the sale occurred on the third day of March is

further verified by the certificate of sale which bears the last-named date.

For these reasons we are of the opinion the judgment and order appealed from should be affirmed.

HAYNES, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[No. 19572. Department Two, August 8, 1895.] FREDERICK GOULD, EXECUTOR, ETC., APPELLANT, v. ASA ADAMS ET AL., RESPONDENTS.

APPEAL-LAW OF CASE.-Where a judgment has been reversed on a former appeal on the same state of facts which appear on a second appeal, the decision of the former appeal is the law of the case upon the second appeal. FINDINGS-IMMATERIAL OMISSION.--Where the facts found sustain the judgment, an omission to find upon immaterial issues, a finding on each of which in favor of the other party would not necessitate any change in the judgment rendered, is not ground for a reversal. MORTGAGE-EXECUTION BEFORE DELIVERY OF DEED TO MOrtgagor— PRIORITY OF MORTGAGE FOR PURCHASE MONEY-FORECLOSURE— AMENDED ANSWER-MOTION TO STRIKE OUT.-In an action for the foreclosure of a mortgage executed before the delivery of a deed to the mortgagor, where the effect of an original answer and crosscomplaint of a defendant claiming under a mortgage for purchase money, as construed upon a former appeal, was to deny that the deed to the plaintiff had been delivered when the mortgage for the purchase money was executed, and it was held upon the former appeal that such nondelivery made the mortgage for the purchase money prior to the plaintiff's mortgage, an amended answer upon a second trial, which expressly denies that the deed was delivered at the time of the execution of the mortgage for the purchase money, cannot be stricken out as inconsistent with the original answer and cross-complaint.

APPEAL from a judgment of the Superior Court of Los Angeles County. WALTER VAN DYKE, Judge.

The facts are stated in the opinion of the court rendered upon the former appeal in Gould v. Wise, 97 Cal. 532, and in the opinion rendered upon this appeal.

Richards & Carrier, and George H. Gould, for Appellant.

The decision upon the former appeal is not res adju dicta, there being uncontradicted testimony on the second trial which was not the same as that given on the first trial. (McLeran v. Benton, 73 Cal. 337; 2 Am. St. Rep. 814.) The mortgagee for purchase money knew that the deed had gone on record, and that plaintiff's mortgage had been taken on the strength of it, before he accepted the cash payment and took his mortgage for purchase money, and the acceptance of the money validated plaintiff's mortgage. (Verplank v. Sterry, 12 Johns. 536; 7 Am. Dec. 348; Duncan v. Hodges, 4 McCord, 239; 17 Am. Dec. 734; Civ. Code, sec. 1589.) The mortgage for purchase money waived any prior vendor's lien. (Gessner v. Palmateer, 89 Cal. 89; Baum v. Grigsby, 21 Cal. 172; 81 Am. Dec. 153; Johnson v. Nunnerly, 30 Ark. 153; Hunt v. Waterman, 12 Cal. 301; Avery v. Clark, 87 Cal. 619; 22 Am. St. Rep. 272; Cronister v. Cronister, 1 Watts. & S. 442; Shontz v. Brown, 27 Pa. St. 123; Bull v. Willard, 9 Barb. 641.) The amended answer and cross-complaint should have been stricken out, as defendant cannot be allowed after appeal to try the case on new issues. (Johnson v. Kirby, 65 Cal. 482; Heinlen v. Beans, 73 Cal. 240; Spanagel v. Reay, 47 Cal. 608, followed in Harney v. Cocoran, 60 Cal. 314; McPherson v. Weston, 85 Cal. 90; Hayden v. Hayden, 46 Cal. 333, 337; Bliss on Code Pleading, secs. 428, 430.)

H. H. Appel, F. R. Willis, and Houghton, Silent & Campbell, for Respondents.

case.

The decision on the former appeal was the law of the (Gould v. Wise, 97 Cal. 532.) The covenants in the contract of purchase being mutual and dependent, the title to the property, although the deed came wrongfully into the possession of the purchaser, did not pass to the purchaser without his having first complied with