defective, although the fact is admitted or proved that the township of Osago was organized from the government township in which the land is situated, and this rule prevails in the federal courts in determining rights to property in that state.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 720735.]

3. TRIAL-EVIDENCE-WAIVER OF OBJECTIONS MAKES EFFECTIVE.

Parties may by stipulation, by silent acquiescence, or by failure to except to admitting rulings waive objections to inadmissible evidence, on the ground that it is not the best, on the ground that it was not properly taken, and on other grounds. Evidence thus received may establish the fact in controversy as conclusively as the best evidence regularly procured.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 260–266; vol. 20, Cent. Dig. Evidence, § 2420.]

Hook, Circuit Judge, dissenting.

(Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the District of North Dakota.

Seth Newman, Daniel B. Holt, and John S. Frame, for appellant. C. J. Murphy and Fred S. Duggan, for appellee.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN, Circuit Judge. This is a suit in equity brought by Frank A. Willson to remove the cloud of certain tax deeds and of certain certificates of tax sales held by the defendant, Paine, from his title to the southwest quarter of section 10, in township 150 north, of range 60 west, in Nelson county, in the state of North Dakota, and to quiet the title thereto in the complainant. A decree to that effect was rendered. In reaching its conclusion the court below held that two certificates of tax sales were void because the following description in the assessor's roll, upon which the levies and sales were based, was fatally defective:

Real estate assessment of Osago Township, Nelson County, North Dakota, for the year 1892:

Section or lot. Twp. or Block.
150

10

R.

60

Opposite the name of Willson there was no number of any township or of any range, and there were no ditto marks. The court below was of the opinion that the absence of the number of any township or of any range and of any ditto marks in this description was fatal to the certificates of sale, under the decision of the Supreme Court of North Dakota in Sheets v. Paine, 10 N. D. 103, 105, 86 N. W. 117, and this ruling is assigned as error.

The question which this specification of error presents is not whether or not this court would be of the opinion that the description here presented was sufficient in the absence of controlling authority. It is whether or not the Supreme Court of North Dakota has decided that such a description is fatally defective, for the decision of that court upon such a question establishes a rule of property in that state which

must prevail in the federal courts. Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012, 34 L. Ed. 260; Percy v. Cockrill, 4 C. C. A. 73, 82, 53 Fed. 872, 877; Madden v. Lancaster Co., 12 C. C. A. 566, 570, 65 Fed. 188, 192; Union Pac. R. Co. v. Reed, 25 C. C. A. 389, 394, 80 Fed. 234, 239; Traer v. Fowler (C. C. A.) 144 Fed. 810, decided by this court at the December term, 1905. Counsel for the appellant deny, and counsel for the appellee assert, that the Supreme Court of North Dakota has so decided in Sheets v. Paine, and that this court has so held in Paine v. Germantown Trust Co. (C. C. A.) 136 Fed. 527. Let us, in the first instance, present clearly to our minds the question decided in these cases and the way in which it was presented.

In Sheets v. Paine the description in the assessment roll was under the heading: "Real property assessment in the town of Field, county of Nelson, North Dakota, 1890," and it disclosed the same defect as that which appears in the case at bar. The land there in controversy was in township 150, range 58. These numbers did not appear in the description of this land upon the assessment roll. Counsel for the appellant sets forth in his brief a portion of the record in that case, which is conceded to be correct, and from which it appears that the counsel for the defendant asked this question: "Now, Mr. Gordon, the township of Field is composed of what congressional township?" The plaintiff objected to the question, "on the ground that it is incompetent, irrelevant, immaterial; the assessment book cannot be varied or explained by parol testimony." There was no ruling or exception, and the witness answered, "It is township 150, range 58, known as Field township." After the examination had proceeded through two pages of printed testimony, the defendant asked the witness this question: "Is it a fact that that congressional township was organized into the civil township of Field?" No objection was made to this question, and the witness answered "Yes." When the case was presented to the Supreme Court of North Dakota upon this record, it held that the description was fatally defective.

In Paine v. Germantown Trust Co. (C. C. A.) 136 Fed. 527, the description in the assessor's roll was headed: "Real property assessment for the township of Dahlen, county of Nelson, and state of North Dakota, for the year 1894." The land was in government township 154, range 57, and these numbers did not appear in the description of the complainant's land in the assessor's roll. The parties 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 was at the time 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 matter." That portion of this That portion of this agreement which contained the contract that Dahlen township was government township 154, range 57, was objected to by the defendant on the grounds "that the same is immaterial, incompetent, and that the assessment roll cannot be aided in determining the description of the land attempted to

be described by oral or other testimony than the assessment roll itself, but must be determined from the face of the assessment roll itself." These objections were overruled, and an exception was reserved, so that when the case came to this court all objections to the character of the evidence of the fact that the civil township of Dahlen was the government township 154 of range 57 had been carefully eliminated by the stipulation, that fact had been admitted, and the only question left was its effect. This court held that the decision in Sheets v. Paine was controlling, that under it the fact that the government township was the civil township was immaterial, and that the description was fatally defective. These dicisions appear to rule the case in hand. Counsel for the appellant, however, attempt to distinguish them. They say that in the Sheets case the fact that the civil township of Field was the government township 150, range 58, was proved by parol testimony over the objection of the plaintiff, and that in the Germantown Trust Company Case the stipulation that the civil township of Dahlen was the congressional township 154, range 57, was received in evidence over the defendant's objection, while in the case at bar the stipulation of the fact that Osago township is government township 150, range 60, was received in evidence without objection. But while the court held in the Sheets Case that the identity of the civil township and the government township could not be proved by parol, this was not all of its decision, nor was it the basic rule declared by the court in that case upon which the objection to the evidence was sustained. The gist of that decision was that the fact of the identity of the townships could not be proved to modify or aid the assessment by any evidence outside the record of the assessment itself. The court quoted its own words in Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511, where it declared that "the law requires a definite record, and no other evidence of the assessment is competent," said that: "To this it may be added that the rights of a purchaser at a tax sale are fixed at the time of his purchase, and his title depends upon the validity of the proceedings had anterior to the purchase. Nor can his rights be enlarged by any evidence introduced to supply fatal omissions which constitute defects which are fundamental and jurisdictional to the tax," and decided that the absence of the numbers of the township and range was fatal to the description. In the case of the Germantown Trust Company the defendant expressly stipulated that the agreement that the civil and congressional townships were identical should take the place of, and obviate the production of, the records which proved that fact, and thereby limited his objection to his contention "that the assessment roll cannot be aided in determining the description of the land attempted to be described by oral or other testimony than the assessment roll itself, but must be determined from the face of the assessment roll itself." This stipulation left the fact of the identity of the townships conclusively established in that case, for there was no evidence to the contrary, and no question of the character of the proof remained for consideration when the case reached this court. Forms and rules for the taking and introduction of evidence are prescribed by statutes and de

cisions, which give to the opposing party the right to the production of the best evidence of a fact, but he may waive these rules, permit the introduction of inferior evidence, or stipulate the existence of the fact, and when he does so that fact is deemed established by the best evidence by which it is provable. U. S. v. Homestake Min. Co., 54 C. C. A. 303, 311, 117 Fed. 481, 489; Walton v. Railway Co., 6 C. C. A. 223, 225, 56 Fed. 1006, 1008; National Loan & Investment Co. v. Rockland Co., 36 C. C. A. 370, 372, 94 Fed. 335, 337. The result is that the alleged distinction between the former cases and that in hand is not founded in fact. Every question of the competency of the evidence in the Germantown Trust Company Case to prove the identity of the townships had been extracted before that case reached this court, and the only question presented for decision by the record was whether or not the description could be aided by any proof or agreement of the fact of the identity of the townships de hors the description itself, and whether or not the description was sufficient. This court answered both these questions in the negative.

Attention is called to the fact that the stipulation in the case at bar recites not only that Osago township is government township 150, range 60, but also that it was duly organized as a civil township under that name by the board of county commissioners of Nelson county in 1884 from government township 150, range 60, while the proof and stipulation in the former cases are limited to the fact that the civil townships. are the government townships, respectively. There is, however, but one way in which civil townships can be brought into being under the laws of North Dakota, and that is by their organization, in accordance with the statutes of that state, by the boards of county commissioners of the counties in which they are respectively situated. Hence an agreement or proof of the fact that a civil township is a government township without more is a stipulation or proof, as the case may be, of the fact that it was duly organized from the government township by the proper board of county commissioners.

Finally, counsel contend that the decision that the absence of the numbers of the township and range from the description in the Sheets. Case was a fatal defect is not controlling, because the court also decided in that case that the description was defective for another reason. The position is untenable. Where a court places its ultimate adjudication upon two or more propositions of law which it properly discusses and decides, either one of which is sufficient to sustain its conclusion, each decision of each of the propositions is within the limits of the case, and is a conclusive and binding adjudication of the court. Union Pac. Ry. Co. v. Mason City & Ft. Dodge R. Co., 64 C. C. A. 348, 354, 128 Fed. 230, 236. The Supreme Court of North Dakota held in the Sheets Case that the absence from a description in an assessment roll headed with the name of the civil township, which had been organized from the government township in which the land was. situated, of the numbers of the government township and range was a fatal defect. 10 N. D. 105, 86 N. W. 117. It is true that it also held that parol evidence that the plaintiff's land was located in the government township was incompetent. This, however, was not the

gist of its decision. The essence of it was that no evidence was effective to cure the absence of these numbers from the description, and that the fact that the government township had been duly organized into the civil township whose name headed the list was immaterial.

In Paine v. Germantown Trust Company, where the fact that the civil township of Dahlen, whose name headed the roll, had been organized from the government township in which the land was situated had been admitted, and all objections to the character of the proof of this fact had been eliminated by a written stipulation, this court so construed the decision in the Sheets Case, and held in deference to it that the absence of the numbers of the government township and range was fatal to that description. In every essential feature pertinent to the sufficiency of the description in the case at bar its facts are identical with those in the Sheets Case and in the case of the Germantown Trust Company, and the description in hand cannot be sustained without disregarding or overruling the decisions in those cases. The conclusion is that the decision in the Sheets Case is controlling in this case, that the description in the assessment roll was fatally defective, and that the decree below must be affirmed.

HOOK, Circuit Judge (dissenting). I am constrained to express my dissent in this case, not alone because I think that the opinion of the Supreme Court of North Dakota in Sheets v. Paine, 10 N. D. 103, 86 N. W. 117, has been misapprehended, but also for the reason that the rule of the foregoing opinion may seriously interfere with the taxing machinery of that state. In effect, it is said that the original descriptive designations of lands by section, township, and range as made at the survey thereof by the national government are sacred and unalterable, and are not subject to a rechristening by the state authorities for purposes of taxation; that the tax rolls must describe the lands as the national government described them, although a change of descriptive designation has been made by the lawfully constituted authorities, acting under the laws of the state, and recorded in the public records of the counties in which the lands are located. With equal reason it may be said that, if after a quarter section of land adjacent to a town has been platted into outlots, with a selected name for the subdivision specified upon the plat, the plat duly certified and acknowledged as required by law, and recorded in the office of the register of deeds of the county, should any particular numbered lot in the subdivision so created and made matter of public record get upon the assessment roll for taxation without designation of the section, township, and range in which it is located, the tax imposed would be absolutely void because of a fatal defect in description. This would be so obviously at variance with well-established modes of procedure in assessment and taxation as to attract attention. But it is very properly observed that the question is not what the opinion of this court would be in the absence of controlling authority, but it is whether such a description as that before us has been held to be fatally defective by the Supreme Court of North Dakota. It is therefore important (1) to examine the description before us and the proof of