Argument for Appellant.

said defendant, when it appears that the true name and address of said former owner are given in full upon the county assessment-roll, both before and after the sale of said property for delinquent taxes, and at the time said suit was brought, held, that the maker of said affidavit did not use the diligence that the law requires.

4. If the owner of land, or one having interest therein, applies to the proper officer for the purpose of paying the tax thereon, and payment is refused or prevented by such officer through a mistake on his part, such tender of payment is the equivalent of pay ment of such tax, to the extent that it bars the attaching of a lien based upon actual nonpayment.

APPEAL from the Ninth Judicial District for Bonneville County. Hon. James G. Gwinn, Judge.

Action to quiet title to certain property in Idaho Falls. Judgment for defendant. Reversed.

A. S. Dickinson, for Appellant.

A payment to the proper officer is a sufficient payment of the tax, whether the county actually gets the money or not; the tax lien is thereby discharged, and the county has no right thereafter to sell the property and can acquire no equity therein by such a sale. Such a sale is void and the assignee of such certificate can acquire no equity in the land. (Griffith v. Anderson, 22 Ida. 323, 125 Pac. 218; Taylor v. Debritz, 48 Wash. 373, 93 Pac. 528; Bullock v. Wallace, 47 Wash. 690, 92 Pac. 675.)

The acts, orders and judgments of courts which are irregular or void are chargeable to the party procuring them, and it is their duty to see that they are correct. (Park v. Higbee, 6 Utah, 414, 24 Pac. 524; Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007.)

An inspection of the affidavit for publication of summons shows that the same fails to state whether or not the appellant. who was a defendant in that action, resided within this state or was a nonresident. It simply states that she cannot after due diligence be found within the state of Idaho, or at all. (Mills v. Smiley, 9 Ida. 325, 331, 76 Pac. 783; Ricketson v. Richardson, 26 Cal. 149, 154.)

Argument for Respondent.

Another feature of this affidavit is the further allegation, "Nor can the plaintiff, after due diligence, ascertain the residences or postoffice addresses of any of the defendants" (naming them). An examination of plaintiff's exhibits "B," "G," "H" and "I" leads to the conclusion that this allegation was wilfully false. He had only to go to the tax-rolls of Bingham county, with which he was presumed to be familiar, and there he would have found both the postoffice address and the street residence of the appellant for the last eighteen years, and that she had been the owner and paying the taxes on lot 33 in block 44 of Crow's Addition to Idaho Falls all those years. By this statement in the affidavit he induced the clerk to make an order to the effect that no copy of the summons and complaint need be mailed to any of the defendants, which was entirely unauthorized by law and a nullity. None was mailed and the appellant had no notice of that action or information concerning it until 1912, after the commencement of this action. (Strode v. Strode, 6 Ida. 67, 96 Am. St. 249, 52 Pac. 161; Mills v. Smiley, supra; Goodale v. Coffee, 24 Or. 346, 33 Pac. 990; Irvine v. Leyh, 102 Mo. 200, 14 S. W. 715, 126 S. W. 10, Dunlap v. Steere, 92 Cal. 344, 27 Am. St. 143, and note, 28 Pac. 563, 16 L. R. A. 361.)

St. Clair & St. Clair, for Respondent.

The method of preparing the assessment-rolls for 1904, 1906, 1908 and 1909 would preclude the possibility of a person, by examination of the tax-rolls, finding an assessment of this or any other property where the assessment was made in the name of a stranger to the record title. In this case the record title at that time stood in Mathilda Jahr, and we were entitled to bring suit to quiet title for Mr. Curley against the appellant in the name under which she held title, being the name of Mathilda Jahr. As the record showed title in Mathilda Jahr, it could not reasonably or at all be expected that search of the tax-rolls be made for an assessment in the name of Mrs. Fred W. Lohr. (Emery v. Kipp, 154 Cal. 83, 129 Am. St. 141, 97 Pac. 17, 16 Ann. Cas. 792, 19 L. R. A., N. S., 983.)

Opinion of the Court-Budge, J.

It is necessary, in order to make an objection to the jurisdiction in a direct attack upon the judgment, to set forth in the complaint specifically the facts showing the falsity or bad faith of the affidavit for publication. (Cargile v. Silsbee, 148 Cal. 259, 82 Pac. 1044; Eldred v. White, 102 Cal. 600, 36 Pac. 944.)

It is necessary to specifically allege the facts constituting the alleged fraud to obtain equitable relief against a judgment claimed to have been procured by fraud. (King v. Clay, 34 Ark. 291; Shufeldt v. Gandy, 25 Neb. 602, 41 N. W. 553; McDonald v. Pearson, 114 Ala. 630, 21 So. 534; Thompson v. Caddo County Bank, 15 Okl. 615, 82 Pac. 927.)

"The 'fraud' for which a judgment may be set aside must be actual fraud, involving intentional wrong as distinguished from legal or constructive fraud." (Wagner v. Beadle, 82 Kan. 468, 108 Pac. 859.)

BUDGE, J.—This suit is one in equity and is, in effect, to set aside a former judgment between the parties wherein the title of the appellant to lot 33, of block 44, of Crow's Addition to the city of Idaho Falls was, by an action brought by the respondent, quieted in him. Service was had of the summons in said action by publication, and default was taken against the appellant.

The original complaint in this suit was filed on December 5, 1912, and the answer and cross-complaint thereto were filed on April 12, 1913. Subsequently the plaintiff, by leave of the court, filed an amended complaint, to which the defendant filed an answer and cross-complaint, and this cause was tried upon the amended complaint and the answer and cross-complaint.

In her amended complaint the appellant claimed that she was the owner and entitled to the possession of lot 33, block 44, Crow's Addition to the city of Idaho Falls, and that the defendant was asserting an adverse claim thereto.

The facts, as we gather them from the record, are as follows: Appellant purchased the lot involved in this litigation in 1892 and paid the taxes thereon regularly up to and including

Opinion of the Court-Budge, J.

the year 1904. John Wray was the assessor and collector of Bingham county during that year, and received the taxes from the appellant prior to the date they became delinquent for the year 1904; but in making up his tax-roll, he listed lot 33 in block 48 to the appellant and credited the payment made to him as ex-officio tax collector on that lot instead of on lot 33 in block 44, which resulted in the taxes on lot 33, block 44, appearing delinquent. One Danielson succeeded Wray as assessor and collector, and on July 10, 1905, sold lot 33, block 44, the appellant's lot, for delinquent taxes for 1904; Bingham county becoming the purchaser. On November 26, 1907, Bingham county sold the certificate of sale received by it to the respondent for $2.60. The respondent obtained a tax deed. some time during 1908.

The record further discloses that the appellant has paid all of the taxes assessed against lot 33, block 44, Crow's Addition, since 1892, down to and including 1912, except 1905, when it was not assessed, and in 1909, when the collector refused her money on the ground that the taxes were already paid.

When appellant purchased the lot in question she was unmarried, and her name was Mathilda Jahr. Prior to 1904, she married Fred W. Lohr, and her name and address appear upon the assessment-roll of Bingham county for 1904, as "Mrs. F. W. Lohr, residence, Aurora, Ill., 434 Talma street." The lot is described upon that assessment-roll as "lot 33, block 48, Crows [additional]." The name and address of Mrs. F. W. Lohr is also upon the assessment-roll for 1906, 1907 and 1908; but upon each of these last three assessmentrolls lot 33, block 44, Crow's Addition properly appears. The error in the description of the lot appears only for 1904.

On November 16, 1909, the respondent filed an action in the district court of the sixth judicial district in Bingham county, entitled Bowen Curley v. Henry M. Sanfield, Mathilda Jahr, et al., to quiet title to lot 33 in block 44, as well as to other lots which he had purchased in a similar manner. Service was had on Bingham county and on December 4, 1909, the respondent made an affidavit in said action to procure an order for the publication of summons upon the defendants and,

Opinion of the Court-Budge, J.

among other things, recited in said affidavit that Mathilda Jahr could not, after due diligence, be found within the state of Idaho or at all; nor could the plaintiff, after due diligence, ascertain the residence or post office address of the said Mathilda Jahr. Order for publication of the alias summons was signed by the court on December 6, 1909, based upon the affidavit of respondent, and the alias summons was duly published in the "Idaho Register," a semi-weekly newspaper published at Idaho Falls. In due time the default of the appellant was taken, and on February 17, 1910, findings of fact and judgment were signed by the district judge of the sixth judicial district, quieting title in the respondent to lot 33. block 44.

It is admitted that there was no order made for the mailing of a copy of the summons and complaint to the appellant; and we think the record fully establishes the fact that she had no notice of said judgment until December, 1912.

This cause was tried at the September term, 1913, of the district court of the ninth judicial district, before the court without a jury and submitted. The court took the cause under advisement and afterward continued it to the January, 1914, term; and on the 5th day thereof signed his findings of fact and conclusions of law and rendered judgment for the respondent, quieting his title to lot 33, block 44. From that judgment this appeal is taken.

It is conceded, first, that during the three years succeeding the attempted sale of lot 33, block 44, Crow's Addition, the assessor failed to enter the taxes assessed against said lot on the assessment-roll in red ink (sec. 1755, Rev. Codes; Parson v. Wrble, 21 Ida. 695, 123 Pac. 638; Griffith v. Anderson, 22 Ida. 323, 125 Pac. 218; Fix v. Gray, 26 Ida. 19, 140 Pac. 771); second, that neither the assessor nor any of his deputies made or subscribed, in the assessment-book for 1904, the affidavit required by sec. 1727, Rev. Codes; third, that the taxes for 1904 were actually paid by appellant to the tax collector of Bingham county. It is therefore obvious that had the appellant appeared in the original action of Curley v. Sanfield, supra, that either one of these separate defenses would have