Page:North Dakota Reports (vol. 3).pdf/149

 Cross appeals from District Court, Barnes County; Rose, J.

Action by James B. Power against A. M. Bowdle, to quiet title, under Comp. Laws, § 5449. From a judgment for defendant, both parties appeal.

Reversed.

J. E. Robinson and C. A. Pollock, for appellant.

When a custom has become so established as to become a part of the law, the court will act upon it, without requiring it to be proved. Consegna v. Millings,1 Peters N.S.C.C. 225. Courts will take judicial notice of whatever is generally known or generally ascertainable within their jurisdictions. Brown v. Piper, 91 US. 37. But parole evidence is not admissable to prove as a custom a local usage changing the significance of the language. Powers v. Larabee, 49 N. W. Rep. 726, S. C.2 N. D. 141.

Where land is sold for taxes it is essential that every fact Necessary to give jurisdiction should appear on the face of the record. Thatcher v. Powe, 6 Wheat., 1 19; McClung v. Ross, 5 Wheat., 116. Every essential proceeding in the course of a levy of taxes, must appear of record in written and permanent form in the records of the bodies authorized to act upon them. Cooley on Taxation, 247, Desty on Taxation, 1087.

Newman & Resser, for respondent.

Defendant pleads title under his tax deed by way of counterclaim. He seeks to defeat plaintiff's title by an equitable cross action. His counterclaim is proper and well pleaded. Pomeroy’s Remedies, § 746; Jarvis v. Peck, 19 Wis. 84. The fact that the statute makes tax deeds prima facie evidence of the regularity of all proceedings and conclusive evidence of the facts recited does not relieve defendant from pleading such Proceedings and facts. The statute furnishes a rule of evidence and not of pleading. Russell v. Mann, 22 Cal. 132; Himmelman v. Danos, 35 Cal. 441. Parole evidence is admissable for the purpose of applying the description to the land and identifying the land which is described, 1 Greenl. Ev. 286 and 301,n.; Stewart