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fered to sustain it, and (2) to ascertain what was determined by that court in the case of Sheets v. Paine. In the case now before us Willson sued Paine to remove the cloud of certain tax claims upon his property, which he described in his bill of complaint as the southwest quarter of section 10, in township 150, of range 60 west, in Nelson county, North Dakota. The assessment roll which was at the foundation of Paine's tax claim showed that the land was in Osago township, Nelson county, but it did not show in specific terms that it was in township 150 of range 60 of the government survey. Thereupon Paine, to uphold his tax claim, offered a stipulation by counsel that prior to the tax proceedings in question Osago township had been duly organized as a civil township out of township 150 of range 60 of the government survey by the board of county commissioners of Nelson county, and it is said that upon the authority of Sheets v. Paine the stipulation was incompetent. There was statutory authority for the action of the board in giving the township a new name. A North Dakota statute provided that, upon petition of a majority of the legal voters of a township according to government survey to be organized as a civil township, the board of county commissioners should forthwith proceed to fix and determine the boundaries of such new township, to name the same, and to make a full report of all its proceedings in relation thereto, and file the same with the county auditor. Therefore the action of the board created a legal identity between Osago township and township 150, range 60, of the government survey. It was an official rechristening of the township under the authority of law, and the evidence of it was upon the public records of the county. The proof tendered covered the acts and proceedings of the board. There was no attempt whatever to use oral evidence to supplement a defective assessment roll. Osago township and township 150 of range 60 were the same in law, and it was entirely proper for the taxing officers to adopt either description. The land owner who contested the validity of the tax could not destroy the effect of what was lawfully done and shown by the public records by describing the land in his bill of complaint according to the government survey.

As to Sheets v. Paine, 10 N. D. 103, 86 N. W. 117. The closest scrutiny of the opinion in that case does not disclose that such a question as that before us was presented or decided. Not a word of discussion of it can be found. The court there held that to make the figures 150 under the word "township” and 58 under the word “range" applicable to a description of a quarter section further down on the page, there should have been ditto marks opposite it and under the figures above; and then the court said:

"To cure this glaring omission in the assessment, the defendant, against objection, introduced oral evidence tending to show that the lands opposite the name of Andrew Lewis were in fact located in congressional township numbered 150 of range 58. This evidence was wholly incompetent to supply a radical defect in description in an assessment."

Again, in considering the tax of another year, as to which there was a similar defect in the assessment roll, the court said:

"This assessment was sought to be bolstered up by oral evidence to the effect that the lands in question were in fact situated in congressional township numbered 150 of range 58. The evidence was incompetent for reasons already advanced in this opinion."

The syllabus of that case, prepared by the court, as required by law, contains further indication, if any is needed, of what it intended to and did decide. The first paragraph, after reciting the condition of the assessment roll as I have described it so far as it related to the point now before us, thus proceeds:

“Against objection, defendant offered oral evidence tending to show that the lands were in fact situated in township 150 of range 58. Held, that the description was fatally defective, and could not be cured by oral evidence. The assessment was totally void, and the defect in the description was one going to the ground work of the tax, and jurisdictional."

Now what is the fair construction of that opinion? It is that oral evidence is not admissible to cure a defective description of a tract of land in a jurisdictional step in a tax proceeding. And while courts may differ in the application of it, the doctrine as so expressed is not new. It finds support everywhere. But to fit it to the case before us it needed and has received from my associates a radical extension and amplification, for there was no attempt here to introduce oral evidence. The opinion in Sheets v. Paine does not disclose what the oral evidence was that was offered, but excerpts from the record in that case furnished by counsel show that Paine sought to prove by the testimony of a witness that township 150 of range 58 government survey was identical with Field township, Nelson county. The Supreme Court of North Dakota held that this evidence was incompetent, and it is as clear as the language of an opinion can make it that stress was placed upon the fact that the evidence was oral, and that being oral it was inadmissible. That such is the point of the opinion of that court seems to me to be obvious from the most cursory reading.

Attention is directed by my associates to the fact that there were no rulings of the trial court in Sheets v. Paine upon the objections to the oral evidence, and no exceptions of counsel; the inference to be drawn being that the case on appeal was considered in the same light as though the best evidence of which the case was susceptible had been received. This, I take it, is without significance for two reasons: (1) The Supreme Court of North Dakota in its opinion attached no importance to those omissions at the trial, and did not even direct attention to them. It assumed that the question whether oral evidence was admissible was properly presented, and it certainly is not our province to search the record before that court for facts and conditions not recited or referred to in its opinion. We should take that opinion as we find it. The inquiry here is, what did the Supreme Court of North Dakota decide in Sheets v. Paine? It expressly said that the evidence was oral, that it was objected to, and that because it was oral it was inadmissible. And this presents the true meaning, scope, and purport of that case in its relation to the case now before us, which does not involve the admissibility of oral evidence. These observations apply with equal force to the one question to which an objection was not noted at the trial of Sheets v. Paine. Other questions of similar purport had been asked and properly objected to, on the ground that the matter was not a proper subject for oral testimony. Even if counsel should have incumbered the record with the constant repetition of the same objection to like questions, which is doubtful, the Supreme Court of the state ignored the omission, and expressly recited that the evidence was objected to.

2. The trial of Sheets v. Paine was to the court of first instance without a jury. The defendant was defeated, and he appealed to the Supreme Court. The North Dakota practice in cases tried without a jury is similar to that in equity in the federal courts, in that all of the evidence, whether objected to or not, must be received. Either party may have his objections to the evidence noted as it is offered, but the trial court does not rule on them, and consequently no exceptions are taken. On appeal to the Supreme Court the defeated party may demand and receive a trial anew of the entire case, in which event all incompetent and irrelevant evidence properly objected to at the trial is disregarded by the Supreme Court. Section 5630, Rev. Codes N. D. 1899. In the opinion in Sheets v. Paine it is specifically recited that Paine demanded a trial anew of the entire case. In the prevailing opinion in the case at bar reference is made to Power v. Bowdle, 3 Ñ. D. 107, 54 N. W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511, as having been followed in Sheets v. Paine. The question in that case was as to the admissibility of evidence (necessary parol) to show the existence of a general usage of language in designating lands by certain symbols, which the court had previously decided to be without intelligible signification. The court held that it took judicial notice of the general usage of language, and that since the symbols relied on to furnish a good description of lands upon an assessment roll were unintelligible, the evidence was not admissible. There is much in this that is in accord with the later case of Sheets v. Paine, but nothing that is pertinent to the case at bar. There is, however, an observation in Power v. Bowdle which indicates that even the rule excluding parol evidence which that court announced was not deemed to be of unvarying application. It said:

"It is also true that where premises have acquired a name or description by repute, though not technically correct, the same will suffice for purposes of taxation, and parol evidence is competent to show the name acquired by repute coincides with the proper description of such land.”

As authority for this doctrine, which it approved, the North Dakota court cited Gilfillan v. Hobart, 34 Minn. 67, 24 N. W. 342, in which it was said:

“We understand the defendants' position to be that the description of the lots as being in Bottineau's addition was sufficient, if that was a designation by which they were commonly known. This is in analogy, we take it, to the rule in accordance with which a person may, by reputation, acquire a name, which, although not the name originally given to him in baptism or otherwise, will be a good name for and against him in business transactions and in legal proceedings. No reason is perceived why this rule should not be applicable to the names of things as well as of persons, nor why the owner of property, upon which he has failed to pay taxes, should not be bound to know that by common repute his property has acquired a well-known designation, differing from its original or technically accurate designation, nor why such reputed designation should not be sufficient in tax proceedings. A description or designation which ascertains the premises, as a well-known and commonly reputed one does, must be sufficient."

As to the case of Paine v. Germantown Trust Company (C. C. A.) 136 Fed. 527, decided by this court upon the authority of Sheets v. Paine, the opinion in that case discloses nothing indicating that the evidence offered to explain a defective description upon the assessment roll consisted of records of the county in which the land was located. On the contrary, Judge Philips, who spoke for the court, said in the opinion:

"The appellant here sought to show by parɔl evidence that Dahlen township embraced the government surveyed townshi;) 154 of range 57. Of this the court said in the Sheets Case" -And then followed the quotation from the decision of the Supreme Court of North Dakota in Sheets v. Pa:ne that oral evidence was inadmissible.

Recourse is had to parts of the record in the Germantown Trust Company Case not shown in the opinion, for the purpose of indicating that the evidence there in question was really record evidence or its equivalent, although I think that the above quotation from the opinion demonstrates quite clearly that the court treated the evidence as oral, and therefore decided the case upon the authority of Sheets v. Paine. It is said that the parties to the Germantown Trust Company Case stipulated at the trial that:

"The township of Dahlen, Nelson county, North Dakota, named in the heading of each of said assessment rolls, is, and vas at the times said assessments were respectively made, the government township numbered 154 in range 57 in said county."

And that the stipulation was “made for the purpose of use as evidence of the facts herein stated upon the trial of this action, and to dispense with the necessity of introducing the records or certified copies of the records bearing upon said natter."

An inspection of the stipulation from which the above parts were excerpted discloses this situation: It consists of 12 separately numbered paragraphs relating to matters of evidence pertinent to the case. Most of them, but not all of their , refer to public records concerning the levy and collection of taxes. The extract above quoted as to the identity of Dahlen township is embodied in the third paragraph. The eleventh paragraph is exclusively a recital that, aside from a tender in the bill of complaint, there had been no tender or offer to repay to the tax title holder the taxes paid by him. This paragraph does not and could not perta n to a matter of record. Its subject-matter rested in parol. The twelfth and last paragraph of the stipulation contains the recital above quoted that the stipulation was made for the purpose of use as evidence of the facts therein stated, and to dispense with the necessity of introducing the records or certified copies of the records. Now, in the prevailing opinion in the case at bar this last paragraph is brought into immediate juxtaposition with the excerpt from the third. Almost any construction of a written instrument may result from a hitching together of widely separated clauses. It seems to me to be doubtful that the intention of the parties to a writing is correctly shown by taking a clause from the end, and bringing it forward to a connection with one near the beginning, when there are passed on the journey other matters which may show the sense of the combination to be inexact. In none of the parts of this stipulation referring to official records is there the slightest mention that they relate to or afford proof of the fact that the township of Dahlen was identical with the government township. These things being true, I question whether it is a reasonable inference that the stipulation in that case was one that the records of the county showed the identity between the civil township and the township of the government survey. Again, the stipulation in that case is not like the one now before us. At the most, the former is merely a stipulation that a certain civil township was identical with the township according to the government survey. This might mean that the identity was merely casual or accidental. It is not a stipulation that the public officers, acting under the express authority of law, have duly and purposely made them identical. It is familiar doctrine that where the law requires certain facts of a jurisdictional character to be shown upon the records, and not to rest merely in parol, a stipulation of counsel that the facts exist is not sufficient. But, however all this may be, the question always turns back to the proper construction of Sheets v. Paine, and that, it seems to me, is not doubtful. When lands adjacent to a city are platted into outlots, or lands within a city are platted into blocks and lots with streets and alleys, how do the descriptions of the various minor parcels get upon the assessment rolls for purpose of taxation? The taxing officers find them upon the public records when the plats are recorded, as required by law. May a court do less when a plaintiff chooses to describe the land claimed in his petition by the numbers of the government survey, instead of by the new name appearing upon the records?

146 F.32

When the Supreme Court of North Dakota decides that the description by government survey of lands assessed and taxed cannot be changed by official acts of public officers, though authorized by state law, that the description of such property upon the assessment roll must be in every respect according to original numbers of township and range, and that resort cannot be had to the public records of the county showing a change of designation or description, such decision will of course be binding upon this court in a case arising in that state. But I take it that while that court may so decide, it has not yet done so.

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