i tax title- ap-pean recorrí, I. Question is made whether we have before us all the evidence offered on the trial below, In certifying the case certain documentary evidence used on the trial was set forth in the transcript by copy, the original documents not being on file in the clerk’s office. In obedience to a rule of this court upon the clerk, he recently sent up certain documents in original form, which, we think, are sufficiently identified as the same documents used in evidence on the trial. On the trial it was stipulated “ that the evidence taken in the case of E. S. Ellsworth v. E.W. Ross el at. may be used in this action as far as the same relates to the tax deed in controversy.” No part of that testimony is included in the record in this case. The stipulation does not of itself make that evidence, or any *54part of it, evidence in this case. It provides that it may be used, but it does not appear that either party availed himself of that privilege. Surely it is not the province of this court to now select from the record in that case evidence, however pertinent to this, not shown to have been offered and used on the trial. We think the record before us contains, in proper form, all evidence offered on the trial of this case.
2 _-evidence II. On the trial, the defendant introduced certified copies of certain deeds for the purpose of showing the defendant Kamp. After the case was submitted, and while held under advisement, the defendants, on notice to plaintiff, were permitted, over plaintiff’s objection, to file the affidavits of defendants Kamp, Lewis and Dodge, to the effect that they did not have the original deeds, of which copies had been offered, in their possession or control. It was shown by counter-affidavit that Lewis and Dodge were present, and testified on the trial, and that Kamp was but a few miles distant at the time. It is conceded that it was within the discretion of the court whether to receive these affidavits ; but it is contended that to receive them under the circumstances was an abuse of that discretion. We do not discover that any prejudice resulted from the action of the court, nor that there is any abuse of discretion.'
3. —: validity: attack. III. Each party claims under tax deed, and disputes the right of the other to question the validity of the deed under which he claims. If the deed under which plaintiff claims is valid, then he had title to the land at the time of the tax sale under which defendants claim, as such deed not only conveys the interests of the owner of the patent title, but also of the state and county. Such title, however, may be divested by a subsequent tax sale and deed. If the tax deed under which defendants claim title is valid, then they may question the validity of plaintiff’s title, because their title was obtained from the state after the sale under which plaintiff claims. To determine the rights of either to question the title of the other, we *55must determine the validity of his title. A condition upon which a party may question- a tax deed executed in conformity with section 897 of the Code is upon showing that he, or those under whom he claims, have paid all taxes due upon the property. There is neither allegation nor proof of the payment of taxes by either party ; and, as neither has demurred to the pleading of the other, they will be taken as having waived all question on this subject. See Adams v. Burdick, 68 Iowa, 666, and Adams v. Snow, 65 Iowa, 436.
4_._. pieadmg. IV. Appellants contend that the tax deed under which plaintiff claims is void, because the taxes for which the sale was made were due to Wood-bury county, and not to Sioux county. Appellee contends that no such issue is tendered in the pleadings. Appellee alleges ownership under the tax deed to Hubbell; and defendants deny generally, and thereby put in issue every question as to validity of that deed that is open to investigation.
‘ organization judicial ‘ V. It is argued that the court cannot take judicial notice of the organization of Sioux county, and that there is no evidence of its organization. If courts may not take judicial notice of the organization of the counties of the state, then the fact of such organization must be established in each case to show jurisdiction. Hard v. City of Decorah, 43 Iowa, 313, is relied upon. In that case it was held that courts would not take judicial notice of the incorporation of towns and villages under the general incorporation act. Following the statement that the courts will take judicial notice of the general incorporation acts, the court says : ‘ ‘ But the fact that a particular village or town has availed itself of the provision of these statutes, and become incorporated as they authorize, is private in its character. The character of county organizations, and their relations to the state and its courts, are not private, but such as of necessity must be judicially noticed and recognized by the courts. As bearing more or less directly upon this subject, see McGill v. State, 25 Tex. App. 499; Evans v. Kilby, 7 *56S. E. Rep. (Ga.) 226; Kansas City, F. S. & G. Ry. Co. v. Burge, 40 Kan. 736; 21 Pac. Rep. 589; Com. v. Fitzpatrick, 15 Atl. Rep. (Pa.) 466; State v. Glasgow, 2 Am. Dec. 629; County of Rock Island v. Steele, 31 Ill. 453; Gooding v. Morgan, 70 Ill. 275; People v. Robinson, 17 Cal. 363; People v. Telford, 23 N. W. Rep. 213. By section 41, chapter 9, Acts, Third General Assembly, Sioux county was created, and by section 14, chapter 16, Acts, Fourth General Assembly, was attached to Wahkaw county (the name of which was after-wards changed to Woodbury county), for judicial, election and revenue purposes. Mr. E. E. Campbell, called and examined by the plaintiff, testified, on redirect examination, and without objection, that Sioux county was first organized February 15, 1860. This testimony being admitted without objection, and unquestioned in the record, we accept it as a fact proven that Sioux county became a separate and independent organization from Woodbury county, February, I860.
__ VT. We have the fact of the organization of' Sioux county in February, 1860, before us not only as a matter of which we will take judicial notice, but as a matter established by direct evidence. The case, therefore, is identical in its facts with that of Hilliard v. Griffin, 72 Iowa, 331, and, following that case, we hold that Sioux county had no authority to sell to Hubbell, and that the deed executed in pursuance of that sale is void. It follows from this conclusion that the plaintiff is not entitled to- the relief demanded, and that his petition should be dismissed. This view of the case renders it unnecessary that we consider the other questions discussed. Reversed.-
