provisions of the law in relation to the proceedings on which his claim is based have been strictly complied with. He must give some evidence, the best he can, of every fact the existence of which is necessary to establish his right. The recitals in the deed are no evidence at all of the truth of what is recited. It is the duty of the purchaser to secure and preserve the evidence of his rights, and he cannot complain of losing them if he neglect so clear a precaution: Blackwell on Tax Titles, sec. 1120. To what extent the presumptions of the common law have been changed by our statutes is the main question here. Section 40 of the laws of 1871, page 48, which was in force at the date of this sale, provides that a tax deed shall be presumptive evidence of the regularity of all former proceedings. Thus it will be seen that the burden of showing the irregularities are shifted to the owner. In this case the court finds, and the finding seems to be warranted by the testimony, that the original assessment roll on which this identical tax was based was not in the office of the county auditor of the county in which the land taxed is situated. The validity of the tax depends upon the assessment, and the assessment can only be shown by the assessment roll; it is upon this roll that the county commissioners based their calculations in levying the tax: Laws 1869, p. 184, secs. 25, 26.

The auditor is the proper custodian of the assessment roll, and when it appears that the original assessment roll is not in the auditor's office, in our judgment the presumption of the regularity is overthrown, and the burden devolves upon the purchaser to explain its absence.

In speaking of this kind of a case under a statute similar to ours, Mr. Black, in his work on tax titles, section 254, says: "If he shall succeed in making out a prima facie case against the tax title, he will have shifted the burden of proof in respect to the points so singled out for attack back to the purchaser. . . . . 'The evidence of irregularity must be such as to require explanation or counter-proof, and must be of matters which are peremptory and not directory, and that it is not sufficient to cast a general doubt over the title, but that it is necessary to point out some specific defect or raise a reasonable presumption against the sufficiency of some particular act, or of the non-performance of some necessary duty.'"

It is not disputed that the making of the assessment roll is a peremptory duty under the law. It is the initial step, the foundation of the whole system of taxation under our statutes:

See chapter 3, Laws 1871, p. 40, on the manner of making assessments. If this roll is not found in the office of the person charged with its custody, it is sufficient evidence of irregularity to require an explanation. If it has ever been there and is gone, there must be some explanation that can be given for its absence. In the absence of such explanation, the presumption must be that it was never there. On any other theory it would be impossible to make any defense against an irregularity of this kind. In support of this view, we cite Lacey v. Davis, 4 Mich. 140; 66 Am. Dec. 524; 16 Mich. 12; State Auditor v. Jackson Co., 65 many other cases.

Case v. Dean, Ala. 142; and

In fact, we are unable to find an authority holding to the contrary, where the irregularity shown was a fundamental requisition, and not merely some directory proceeding, excepting possibly Sams v. King, 18 Fla. 557, where it is held that it is not sufficient to prove facts from which irregularities may be inferred. In addition to this, it is said (Black on Tax Titles, sec. 254) that notwithstanding the fact that there may be a statute making a tax deed presumptive evidence of the regularity of the proceeding, if the holder of such a deed goes into proof of the steps necessary to make the same valid, he will be deemed to have waived the benefit of the presumption in favor of the deed.

Many propositions are urged, and authorities cited in their support, by appellant which are readily conceded by the court, and which do not affect, in our judgment, the true issues involved in this case. Sections 2936 and 2937 of the code are not in point, as they were not in force at the time of the sale, even conceding the constitutionality of the latter section.

If the sale was void, which we think it was, none of the claims made by the appellant under the statute of limitations are good. Without analyzing the deed in question, or entering into any discussion, as so many courts are inclined to do, on the policy of the laws regulating tax titles and the difficulties of obtaining such titles, but construing the law in harmony with the great weight of authority, we find no error of the court below.

Judgment is affirmed.

TAX DEEDS AS EVIDENCE OF TITLE. The original rule was, that a pur chaser at a tax sale “bought at his peril, and could not sustain his title, without showing the authority of the collector, and the regularity of the pro ceedings": Lyon v. Hunt, 11 Ala. 295; 46 Am. Dec. 216; Keane v. Cannovan,

21 Cal. 291; 82 Am. Dec. 738. The statutes which have made tax deeds prima facie evidence of all proceedings up to their date have shifted the burden of proof to the person assailing the title: Lacey v. Davis, 4 Mich. 140; 68 Am. Dec. 524; Long v. Burnett, 13 Iowa, 28; 81 Am. Dec. 420; Washington v. Hosp, 43 Kan. 324; 19 Am. St. Rep. 141. A tax deed, to have this effect, must be regular on its face: Taylor v. Winona etc. R. R. Co., 45 Minn. 67. If void on its face it cannot be received in evidence for any purpose: Merriam v. Dovey, 25 Neb. 618; as, for example, where it has apparently been altered in a material respect after its execution: Miller v. Luco, 80 Cal. 257. The Political Code of California provided that after a sale of property for taxes a certificate should be issued by the officer making the sale, and should state certain facts designated in the statute; that after the time for redemption expired, a deed should be issued which should state the matters recited in the certificate, and that when such deed was duly acknowledged or proved, it should be prima facie evidence of the assessment, equalization, levy, and non-payment of the tax, and that at a proper time and place, the property was sold as prescribed by law, and that it had not been redeemed, and that the person who executed the deed was the proper officer to execute it, and that such deed should, except as against actual fraud, be "conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor inclusive up to the execution of the deed ": Pol. Code of Cal., secs. 3776, 3786, 3787. Subsequently another section of the code relating to the time for redemption was amended, by requiring the purchaser to give a notice of the expiration of such time and of the time when he would apply for a deed, and the right to redeem was extended until such notice was given and the deed applied for. After this a conveyance was made pursuant to a tax sale, containing all the recitals required by the statute, and the question arose whether the deed was either prima facie or conclusive evidence that the notice of the expiration of the time for redemption had been given as required by law. The opinion of the court was, that this amendment modified the other sections, in so far as the subject-matter of the amendment was concerned, and made it necessary for the person relying upon the deed to show by extrinsic evidence that he had given the notice of the expiration of the time for redemption, and had thereby conferred upon the officer authority to execute such deed, and that in the absence of such extrinsic evidence, the deed was neither conclusive nor prima facie evidence of title: Miller v. Miller, Sup. Ct. Cal., Oct. 1892.

TAX DEED AS COLOR OF TITLE. A tax deed properly recorded cannot, after the claimant under it has been in possession of the land for the statutory period, be overthrown by evidence'not contained within or on the face of the deed: Edwards v. Sims, 40 Kan. 235. A tax deed, void on its face, does not set in motion the statute of limitations specially applicable to tax sales: Kinney v. Forsythe, 96 Mo. 414; but under the general statute of limitations, a void tax deed may constitute color of title: Bartlett v. Kauder, 97 Mo. 356; but see note to Wofford v. McKinna, 76 Am. Dec. 57.

- Certificate of tax

PAROL EVIDENCE TO PROVE CONTENTS OF TAX Deed. sale has the prima facie effect given it by statute, even when, because of its loss or destruction, its contents are proved by parol: Mitchell v. McFarland, 47 Minn. 535.

THE CONSTITUTionality of Statutes declaring in what cases a tax deed shall be conclusive or presumptive evidence of prior proceedings is upheld in People v. Turner, 117 N. Y. 227; 15 Am. St. Rep, 498; In re Douglas, 41 La Ann. 765; Rollins v. Wright, 93 Cal. 395. But a statute is unconstitutional

which dispenses with the requirements essential to a valid exercise of the taxing power: In re Douglas, 41 La. Ann. 765; nor can a tax deed be declared by statute to be conclusive as to matters essential to jurisdiction: Maguiar v. Henry, 84 Ky. 1; 4 Am. St. Rep. 182.

STATUTE MAKING TAX DEEDS PRIMA FACIE EVIDENCE of transfer of title can apply only to deeds executed upon a sale for taxes levied after its enactment: Keane v. Cannovan, 21 Cal. 291; 82 Am. Dec. 738.

TO THROW THE BURDEN OF PROOF upon the holder of the title under the tax deed, the adverse party must point out some specific defect, or raise a reasonable presumption against the sufficiency of some specific act, or of the non-performance of some necessary duty: Lacey v. Davis, 4 Mich. 140; 66 Am. Dec. 524.

KENTZLER v. Kentzler.

[3 WASHINGTON, 166.]

Mere loss of a certified copy

JUDGMENT OF SISTER STATE - EVIDENCE OF. of a judgment of a sister state will not warrant the admission of parol evidence of its nature and contents, in the absence of proof that the original record is lost or destroyed. HABEAS CORPUS-CUSTODY OF MINOR CHILDREN. -In habeas corpus by a mother against a father to recover the possession of their minor children, claimed to have been awarded to the custody of the mother in divorce proceedings in another state, evidence that the mother is unsuited to have control of them, because of her immorality and her financial inability to support them, and that the father is a more suitable person to have the custody of them, and better able financially to care for, rear, and educate them, is sufficient to support a decree awarding the custody of such children to their father.

Andrew F. Burleigh, for the appellant.

John Fairfield and John W. Kolb, for the respondent.

SCOTT, J. This proceeding was instituted in the superior court of King County, this state, by the respondent, Millie Kentzler, who, in August, 1890, filed against the appellant, Joseph Kentzler, her petition for a writ of habeas corpus to obtain possession of two minor children. The parties had been married at Miles City, Montana, on the tenth day of July, 1883. The aforesaid Millie Kentzler claimed, and grounded her petition upon that claim, to have obtained a decree of divorce from said Joseph Kentzler in the courts of Montana, at Helena, on the twenty-seventh day of December, 1889, and that by said decree the custody of the children of the marriage had been awarded to her, and that the appellant had wrongfully kidnaped and carried away two of the children. The appellant, in answer, denied all knowledge of any divorce having been obtained, ex

cept as he had been informed by Millie Kentzler herself; alleged that he had received no notice of the pendency of any such proceeding, and had not been present at the trial, either in person or by his attorney, and claimed that the respondent was unable to and did not provide for the support of the children, but that she herself was an object of charity, while he was fully able and ready to provide for them; and closed with charging respondent, and her mother, who were living together when he took the children away, with being loose in their morals, and totally unfitted to have the care and rearing of children.

On these issues the parties went to trial. The only evidence offered was the testimony of the respective parties, and some letters written by the respondent to the appellant. In the course of the respondent's testimony, she testified that she had lost the certified copy of the decree of divorce, which she had obtained, and after diligent search had been unable to find it. On this basis parol evidence was offered to prove the decree. Counsel for the appellant objected to the admission of such testimony as being incompetent, and that the only evidence admissible to prove such judgment was a certified copy of the record. The court overruled this objection, and in overruling it said: "I shall admit the evidence, and I will allow the defense to offer evidence showing what is best for the present welfare of the children, and I will allow evidence to be offered independent of the record of the Montana court."

Whereupon counsel for respondent objected to the introduction of any evidence other than that which related to the record of the Montana court, which was also overruled. He now claims that the court was justified in awarding the children to the custody of the respondent upon the testimony introduced as to the fitness of the parties. It seems, however, that the finding was not based upon this testimony, from what the court said, which appears in the statement of facts, and is as follows:

"The Court: There are two facts in this case which seem to me to be established without doubt; one is, that the petitioner, Mrs. Kentzler, was divorced from Joseph Kentzler in Montana, in December last, and awarded the custody of the children; the other, that Joseph Kentzler went to Montana and took these children away from their mother without any right, and brought them to Washington. Upon all the other points there is a direct conflict of testimony, and I am unable