Argument for Appellant.

3. Secs. 1763 and 1764 of the Revised Codes must be construed together, and when so construed only require the officer making a tax deed to incorporate therein "substantially the matters contained in the certificate," and a substantial compliance therewith is all that is necessary.

4. Under the provisions of sec. 1653 of the Rev. Codes, dealing with the assessment and collection of taxes, "no mistake in the name of the owner or supposed owner of real property shall render the assessment thereof invalid"; and under the provisions of sec. 1788, no informality will render an assessment, or any act relating to an assessment, or the collection of a tax illegal.

5. Where a tax deed was not in fact made, executed and delivered until after the time for redemption by the property owner had expired, it is not fatal to the deed and will not render it invalid if it recite upon its face that the purchaser or his assignee was entitled to a deed one day earlier than he was in fact entitled to it under the law.

6. Where the proceedings have been in substantial compliance with the law and the tax sale has been made in substantial conformity therewith, and the time within which the land owner may redeem is fixed and limited by the statute, there is no right of redemption, whether a deed has been issued or not, after the expiration of the statutory period allowed for redemption.

7. Where the power is vested in an officer to execute a tax deed, such power and authority is not exhausted until a deed is made in compliance with the law, provided the preceding steps have been taken in accordance with the law as the same appears of record in his office. The making of an insufficient, defective and invalid deed does not exhaust the power of the officer where the facts exist upon which a valid deed may be made.

APPEAL from the District Court of the Second Judicial District, in and for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action by plaintiff to quiet title. Judgment for plaintiff and defendant appealed. Reversed.

C. H. Lingenfelter, for Appellant (Eugene A. Cox, of Counsel).

A reading of the sections of the Idaho code pertaining to the subject shows conclusively that the law of this state does not even contemplate that the name of the owner must be

Argument for Appellant.

correctly placed in the assessor's list. (Secs. 1345, 1346, 1321, and 1455.)

Under a tax system making taxes a lien upon property, the sole and only purpose for directing that property shall be assessed to the owner or claimant is from an enlarged spirit of fairness and accommodation, and not because such procedure is essential to the validity of the taxes. (McQuade v. Jaffray, 47 Minn. 326, 50 N. W. 233; Williams v. Pittock, 35 Wash. 271, 77 Pac. 385; Lake Co. v. Sulphur Bank etc. Co., 66 Cal. 17, 4 Pac. 876; Klumpke v. Baker, 131 Cal. 80, 63 Pac. 137, 676; Landregan v. Peppin, 86 Cal. 122, 24 Pac. 859; Coolidge v. Pierce County, 28 Wash. 95, 68 Pac. 391; Woodward v. Taylor, 33 Wash. 1, 73 Pac. 785, 75 Pac. 646; Helms v. Wagner, 102 Ind. 385, 1 N. E. 730; Bradley v. Bouchard, 85 Mich. 18, 48 N. W. 208; Taber v. State, 38 Tex. Civ. 235, 85 S. W. 835.)

The statutes of this state make the tax deed prima facie evidence that "at a proper time and place the property was sold, as prescribed by law."

It is clear from the most cursory reading of the Idaho statutes, that a sale of the property on the fifty-second day was not necessarily improper. (Secs. 1417, 1418, 1419, Rev. Codes; Love v. Welch, 33 Iowa, 192; Bullis v. Marsh, 56 Iowa, 747, 2 N. W. 578, 6 N. W. 177; Harris v. Curran, 32 Kan. 580, 4 Pac. 1044; Stafford v. Lauver, 49 Kan. 690, 31 Pac. 302; Clark v. Tilden, 72 Kan. 574, 84 Pac. 139; Patterson v. Carruth, 13 Kan. 494; Morrill v. Douglass, 17 Kan. 291, 293; Jordan v. Kyle, 27 Kan. 190; Lacey v. Davis, 4 Mich. 140, 66 Am. Dec. 524; Hill v. Atterbery, 88 Mo. 114.)

The suggestion that a tax deed must show "all the requirements of the law have been complied with" is in flat contradiction of the Idaho statute. The early California cases cited do not so hold, because in each of them the deed itself on its face showed a void assessment. In addition, the doctrine they stand for has been expressly repudiated in California under a tax system which is substantially different from that prevailing in California at the time they were ren

Argument for Appellant.

dered, and which is almost completely copied into the Idaho laws. (Hayes v. Ducasse, 119 Cal. 682, 52 Pac. 121.)

All that is required in point of conformity between the deed and the certificate is substantial identity of recital. (Doland v. Mooney, 79 Cal. 137, 21 Pac. 436; Stout v. Coates, 35 Kan. 382, 11 Pac. 151; Muirhead v. Sands, 111 Mich. 487, 69 N. W. 826; Hewes v. McClellan, 80 Cal. 393, 22 Pac. 287; Rollins v. Wright, 93 Cal. 395, 29 Pac. 58.)

A recital in the deed of a step in the proceedings which may be consistent with proper procedure cannot be relied upon to overcome the prima facie effect of the deed itself. (Hoge v. Magnes, 85 Fed. 355, 29 C. C. A. 564; Cane v. Herndon, 107 La. 591, 32 So. 33; Wright v. Dunham, 13 Mich. 414; Pleasants v. Scott, 21 Ark. 370, 76 Am. Dec. 403; Cramer v. Stone, 38 Wis. 259.)

A second tax deed is properly executed by the tax collector when his first deed is defective, and it is the imperative duty of such official to furnish such deed to the owner of the tax title, and such second deed, no matter at what stage of the proceedings it is issued, is admissible in evidence with all the evidential effect given by statute to tax deeds. (McCready v. Sexton, 29 Iowa, 356, 4 Am. Rep. 214; Douglass v. Nuzum, 16 Kan. 515; Finley v. Brown, 22 Iowa, 538; Brien v. O'Shaughnesy, 71 Tenn. 724; Bank v. Mersereau, 3 Barb. Ch. 528, 49 Am. Dec. 189; Smith v. Griffin, 14 Colo. 429, 23 Pac. 905; Duggan v. McCullough, 27 Colo. 43, 59 Pac. 743; State ex rel. White v. Winn, 19 Wis. 304, 88 Am. Dec. 689; Clippinger v. Tuller, 10 Kan. 377; Hart v. Smith, 44 Wis. 213; 2 Blackwell, Tax Titles, sec. 1073; 2 Cooley, Taxation, p. 1370; 2 Desty, Taxation, p. 910; Black, Tax Titles, sec. 408.)

The respondent's entire title and interest in the premises covered by the appellant's tax deeds expired with the expiration of the three years allowed by statute in which to redeem, and the holder of the tax title, if the tax proceedings were regular, acquired at that date an indefeasible interest. (Blackwell, Tax Titles, sec. 734; Pearson v. Robinson, 44 Iowa, 413; Beggs v. Paine, 15 N. D. 436, 109 N. W. 322; McMillan v. Hogan, 129 N. C. 314, 40 S. E. 63; Levy v. New

Argument for Respondent.

man, 130 N. Y. 11, 28 N. E. 660; Dumphey v. Hilton, 121 Mich. 315, 80 N. W. 1; Quinn v. Kenney, 47 Cal. 147; Pollen v. Magna Charta Min. & Mill. Co., 40 Colo. 89, 90 Pac. 639; Scofield v. McDowell, 47 Iowa, 129; Wood v. Coad, 120 Iowa, 111, 94 N. W. 264; Keeley v. Sanders, 99 U. S. 441, 25 L. ed. 327; Bitzer v. Becke (Iowa), 89 N. W. 193.)

Clay McNamee, for Respondent.

The recitals in the tax deed must be identical with those in the tax certificate. (Hughes v. Cannedy, 92 Cal. 382, 28 Pac. 573; Anderson v. Hancock, 64 Cal. 455, 2 Pac. 31; De Frieze v. Quint, 94 Cal. 653, 28 Am. St. 151, 30 Pac. 1; Grimm v. O'Connell, 54 Cal. 522; Daly v. Ah Goon, 64 Cal. 512, 2 Pac. 401.)

A tax deed must show that all the requirements of the law from first to last have been complied with. (Ferris v. Coover, 10 Cal. 632; Ferris v. Chapman, 10 Cal. 589; Kelsey v. Abbott, 13 Cal. 609; Lachman v. Clark, 14 Cal. 131.)

"A tax deed will be set aside if one substantial defect is found in the proceedings." (Vestal v. Morris, 11 Wash. 451, 39 Pac. 960.)

A defective tax deed cannot be cured by the issuance of a second or correctionary deed, as is sought in this case. (Vestal v. Morris, supra; Hewitt v. Storch, 31 Kan. 488, 2 Pac. 556.)

Where the legislature has provided a form of deed, that form must be followed, otherwise the deed will be void, it matters not how slight the variation may be. (Grimm v. O'Connell, 54 Cal. 522; Anderson v. Hancock, 64 Cal. 455, 2 Pac. 31.)

When it is shown that the notice of sale for taxes was not given in substantial conformity with the statute, the sale will be adjudged invalid, notwithstanding the tax deed, in proper form, may have been duly executed and recorded. (Morris v. St. Louis Nat. Bank, 17 Colo. 231, 29 Pac. 802; Olsen v. Bagley, 10 Utah, 492, 37 Pac. 739.)

Opinion of the Court-Ailshie, J.

AILSHIE, J.-This action was instituted by plaintiff to quiet its title to a certain tract of land situated in that part of Nez Perce county which formerly belonged to Shoshone county. The plaintiff traces its title by mesne conveyances from one Frank Andrews, the original patentee from the United States. Defendant bases his title on a tax sale made by Shoshone county for the taxes levied and assessed against the property in the year 1903. Judgment was entered in favor of the plaintiff, and the defendant appealed from the judgment and order overruling a motion for a new trial.

The district court held that the sale of the land for taxes was illegal, that the tax certificate was illegal and void, and that the tax deeds issued thereon were consequently illegal and void. We shall take up the points separately and in the order in which they are treated by the respondent in its brief in support of the findings and judgment of the trial court.

1. The first point made in support of the judgment is that the certificate of tax sale issued to Shoshone county on the 12th day of July, 1904, is wholly void. This contention is based upon the grounds that the certificate does not fully comply with sec. 1759 of the Rev. Codes in specifying the state and county taxes, poll tax, city, town, village and Independent School district tax, etc. This objection is unfounded. for the reason that the certificate recites that the tax for which the property was sold was as follows: "State and county, $28.00; penalty and costs, $3.05; total, $31.05." The statement in the certificate that the taxes for which the land was sold were "state and county," and "penalty and costs," excludes the idea that taxes were included for any other purpose or of any other nature. It has been suggested that the court will take judicial knowledge of the fact that in the year 1903 the county commissioners of Shoshone county must have levied school taxes and special road taxes, etc. The court, on the contrary, cannot take judicial notice of any such fact, and in the absence of proof that such taxes were included within the total sum for which this land was sold, we must assume that the land was in fact not sold