This is referred to in the argument, but not pressed. It is sufficient to say the evidence, in our opinion, fully warrants the verdict.

8. A motion has been made to strike the amended abstract of the appellee from the files because not filed in time under the rules, and because it sets out the evidence in form the questions and answers, and is in fact not an abstract. The cause was docketed for trial at the June term, 1879, and the abstract properly served before that term. The amended abstract should have been filed previous to that time, and the cause then submitted; but without fault or negligence on the part of the appellee no amendment was then filed, and he applied for a continuance to enable him to do so. To this the appellant consented, and by agreement the cause was continued to the Council Bluffs term in September, more than 30 days before that term.

The amended abstract was served upon counsel for the appellant. We think this was in time, and the motion therefore will be overruled; but as the amended abstract has not been prepared as the rules require, and could have been greatly condensed, and the rights of the appellee fully preserved, we think he should pay three-fourths of the cost of such amended abstract, and it is so ordered.

Affirmed.

Appellant.

Filed December 5, 1879.

A land owner whose taxes are delinquent is bound to know that fact and cannot shield himself from the effect of a failure to pay his tax by the fact that the description of his property has been omitted in the advertisement for sale. The time of a tax sale is not jurisdictional, and the deed when issued is conclusive as to the time of such sale. Answer in this case held not to aver payment of the tax in question but merely facts that may be evidence of a payment. Statute of limitations held to have run against defence to tax deed.-[ED.

Appeal from Taylor circuit court.

On the thirtieth day of April, 1878, the plaintiff commenced this action, praying that his title to and estate in certain eighty acres of land in the petition described be established against the adverse claims of the defendant, and that the defendant be barred and estopped from having or claiming any right or title adverse to the plaintiff. Attached to the petition is an abstract of title showing that on the twenty

third day of October, 1871, the treasurer of Taylor county executed a tax deed conveying said land to N. B. Moore, which tax deed was recorded on the same day, and that on November 17, 1875, N. B. Moore, by warrranty deed, conveyed said land to the plaintiff. To the petition the defendant answered as follows:

"1. Alleges that she is a resident of Jasper county, Iowa, and never resident in Taylor county.

"2. Denies that plaintiff is the owner in fee simple of the land described in his petition, or that he has any interest whatever therein, other than that of possession wrongfully obtained and held.

"3. Defendant admits that plaintiff is now in possession of the land described in his petition, and that he has been in such possession for and during the period averred in said petition; and that such possession is held under a pretended tax deed made, executed, delivered and recorded at the date set out in his petition. (This paragraph was amended. See amendment.)

"4. Defendant further answering, and by way of new matter, alleges that from and after July 21, 1862, up to the present date, she has been and now is the owner in fee simple of the land in plaintiff's petition described.

"5. That plaintiff pretends and alleges title in himself to said land on and through a pretended tax deed made, executed and delivered by the treasurer of Taylor county, Iowa, to N. B. Moore, under whom plaintiff claims.

"6. That said alleged title claimed to have been passed by and through said pretended tax deed is inferior to the title of defendant and absolutely void.

"7. That the tax sale under and by virtue of which said pretended tax deed was made, executed and delivered, was made without advertisement of the land to be sold.

"S. That said land was sold on a day not authorized by law.

"9. That no valid tax deed was ever executed and delivered for said land to any one.

"10. That on Saturday, August 29, 1868, the treasurer of Taylor county, Iowa, caused to be published in the Iowa Southwest, a weekly newspaper then published in said Taylor county, where the land in controversy is located, the following public notice:

DELINQUENT TAX LIST FOR 1867.

"Notice is hereby given that I will offer for sale at the court-house door in Bedford, Taylor county, Iowa, on Monday, the fifth day of October, 1868, at 10 o'clock A. M., the following parcels of land, for the taxes due for the year 1867, and all previous taxes, interest and costs that may have accrued thereon. Sale to continue from day to day until all the lands are sold, or enough to satisfy the taxes due. Dated August 29, 1868.

"E. ROSE,

"Treasurer of Taylor county, Iowa.

"And following this notice was a description of lands, which said description did not contain the land here in controversy, and the said description of lands was so grossly defective as to be entirely void; and thereupon, on the fifteenth day of September, 1868, the said treasurer, finding that there was not time sufficient within which to advertise said land for sale, on the fifth day (first Monday) of October, 1868, as required by law, added to the advertisement aforesaid the following published notice in the Iowa Southwest:

"Notice is hereby given that on account of an error appearing in the non-resident lands of Platte township, the sale of all property advertised for sale of taxes due for the year 1868, and previous years is postponed until Monday, the 12th day of October, 1868.

"E. ROSE, "Treasurer of Taylor county.

"And that on Monday, October 12, 1868, said land was offered for sale, and a sale thereof pretended to have been made, and on that pretended sale rests the validity of the tax deed and title through and upon which plaintiff claims.

"11. That said treasurer made said sale upon a day when by law he was absolutely unauthorized and forbidden so to do. "12. That the recitations in said purchased tax deed as to the date of said sale and the adjournment thereof are absolutely false and fraudulent; that said land was sold on the twelfth day of October, 1868, at a pretended tax sale, begun on the second Monday (twelfth day) of October, 1868, and that (the twelfth day of October) was the first day in 1868 upon which any tax sale was begun and publicly held in Tay

lor county, and that no tax sale was begun and publicly held on the first Monday in October, as recited in said pretended tax deed, and no adjournment was had on and from that (first Monday of October, 1868) or any other day in 1868, except on and from the twelfth day (second Monday) of October.

"13. That the books of the treasurer's office of Taylor county, Iowa, show that a receipt was issued for the payment of taxes on this land in controversy, for the year 1867, on the thirteenth day of May, 1868, the same being the taxes for which the said land was sold or attempted to be sold on October 12, 1868, and on which sale, or pretended sale, plaintiff's alleged title rests; that the evidences of payment contained in said treasurer's books have been altered, changed and obliterated, and the stub of the receipt marked and cancelled, and all this change, alteration, obliteration and cancellation being made without the knowledge or consent of defendant. Wherefore defendant prays that her title to said land be quieted, and that said tax deed be set aside and cancelled."

Afterwards the defendant filed an amendment to her answer so that the third paragragh thereof shall read as follows: "Defendant admits that the plaintiff is now in possession of the land in controversy, but alleges that his possession has been for a period not to exceed two years, but, as defendant verily believes, a much shorter time; that such possession is held under a pretended tax deed made, executed and recorded at the dates set out in plaintiff's abstract to his petition attached, which abstract is admitted to be correct. To this answer the plaintiff demurred as follows:

"1. The facts stated in defendant's answer do not constitute a defense in this: They go to the regularity only of proceedings under tax sale and deed, and the regularity or irregularity of proceedings under sale and deed is no defense

to this action.

"2. Defendant does not allege the payment of taxes, but states that the treasurer's books show a receipt for the taxes of that year for which the land was sold for non-payment of taxes, and also that the same book shows that said receipt has been cancelled.

"3. The answer shows that plaintiff's title is based on a tax deed executed and recorded more than five years before the beginning of this suit, and that the matter alleged as defence is barred by the statute of limitations, and, therefore, cannot be pleaded as a defence to this action."

There

The court sustained the demurrer. The defendant excepted,. and stood upon her answer and refused to amend. upon the court, upon the production of evidence, entered a decree according to the prayer of the petition. The defendant appeals.

Whiffin & Brown and D. H. Hazen, for appellant.
G. B. Haddock, for appellee.

DAY, J. It is conceded that if there were a sale in fact of the lands in question, the statute of limitations has run in favor of the deed, and that the appellant, if plaintiff, would be barred from questioning the validity of the title derived through the sale. It is claimed, however, that the sale is void, and that, therefore, the statute of limitations does not run in favor of it.

1. It is claimed that the sale is void because the advertisement does not contain the land in controversy. The answer alleges that notice was given that a sale for delinquent taxes would occur on the day that the sale was made. The only complaint made under this head is that the notice did not contain the land in controversy. The notice fixed the time of sale. The delinquent was bound to know that the taxes on his land had not been paid. The law notified him that all delinquent lands were required to be offered for sale. He cannot shield himself from the consequences of his neglect merely from the fact that the published notice did not contain the land in question. Knowing that his lands were delinquent, it ought to have occurred to him that the omission was a mere mistake, and he should have governed his action in accordance with the suggestions. Upon this question see Allen v. Armstrong, 16 Iowa, 508; Hurley v. Powell, Levy & Co. 31 Iowa, 64; Madson v. Sexton, 37 Iowa, 562.

2. It is insisted that the sale 'is void because not made on the first Monday of October, nor on the first Monday of some succeeding month. In Clark v. Thompson, 37 Iowa, 536, 541, it is held that the time of sale is not a jurisdictional matter, and that the deed is conclusive evidence of a compliance with the law in that respect.

3. It is urged that the fact that a receipt was once issued, and then the stub cancelled, without the knowledge or consent of defendant, is presumptive evidence that the taxes were paid. It may be that this fact would be evidence entitled to some consideration of the payment of this tax; but the answer does not allege such payment. No issue of such payment is made. The answer in this respect pleads mere