129 P. 1054 | Mont. | 1913
delivered the opinion of the court.
Action to recover for the breach of .a warranty against encumbrances. A demurrer to the complaint and an objection .to the introduction of any evidence under it were overruled; and at the close of the evidence for the respondent a motion for nonsuit was denied. Respondent had judgment according to the prayer of the complaint, and from that judgment and from an order overruling their motion for a new trial, defendants appeal. The principal questions presented are: (1) The sufficiency of the complaint, and (2) the admissibility of oral testimony by an attorney to establish the law of a sister state.
1. The complaint alleges that on July 16, 1899, the appellants sold and granted to respondent “by deed duly acknowledged in fee simple” certain lots in the city of Spokane; that said deed
It will be noted that the supposed encumbrance referred to is born of some kind of tax or assessment imposed by the city of Spokane. "What the legal status of the city of Spokane is, what kind of tax, charge or assessment it imposed upon the property, what power it had to impose such a tax or assessment, how such power must be exercised, how it was exercised, and how the tax or assessment came to be a lien or encumbrance, are matters concerning which the complaint is silent. . No extended
Nor does it specially aid the matter if we assume that the city of Spokane is a municipal corporation of the state of Washington. Nowhere outside of the law of Washington can there be anything which empowers the city of Spokane to levy any taxes or assessments of such character as to be liens or encumbrances upon real estate. If it has any such power, it must have it by virtue of some statutory provision of the state of Washington,
2. Inasmuch as this case must be retried, we deem it advisable to refer briefly to the manner of proving the law of a sister
The judgment and order appealed from are reversed and the cause is remanded for a new trial.
Beversed and remanded.