Byington v. Robertson

17 Iowa 562 | Iowa | 1864

Cole, J.

1. pxiead-mieeaa^ I. The petition distinctly avers the execution and delivery of the deed by the proper officer, and a copy of the deed is annexed to the petition. The statute under which the sale and deed were made, provides that the deed shall be presumptive evidence of the regularity of all prior proceedings. It was, therefore, unnecessary to aver the due and regular performance of the acts necessary to make the deed valid. The possession of the deed was, under the statute, evidence of their due performance, and devolved upon the defendant the onus of showing that they were not performed. Since the plaintiff, therefore, need not, in the first instance, prove such facts, he need not aver them; for, to hold that he must aver them, would be a violation of the well recognized rule in pleading, that a party need not aver more than it is necessary for him to prove.

2. —' statement, II. As to the ninth cause of demurrer, that the petition does not show what the subsequent taxes were, for the four subsequent years, on said premises, alleged to have been paid by plaintiff, if the petition is vulnerable to such an objection, it would only be made available by a motion for a more specific statement, but not by demurrer. Byington v. Woods, 13 Iowa, 17.

The judgment of the District Court is reversed, and cause remanded for further proceedings not inconsistent with this opinion.

Reversed.