Opinion of the court by
Irwin, J.:The plaintiff in error in this case submits the ease on two propositions only, to-wit, that the petition of the plaintiff in the court below does not state a cause of action, and hence the trial court should have sustained the demurrer of the defendant to the petition of the plaintiff; and second, that the court below erred in not sustaining the motion for a new trial.
*237In regard to plaintiff in error’s first assignment, to-wit, that the court erred in overruling the demurrer to Ihe petition, it will be noticed that the demurrer is general, and goes to the whole petition, and not to each count thereof. •
Section 4005 of the Statutes of Oklahoma 1893, provides :
“In any action for the recovery of real property it shall be described with such convenient certainty as will enable an officer holding an execution to identify it.”
Section 4492 of the same statute reads as follows:
“In an action for the recovery of real property it shall be sufficient if the. plaintiff states in his petition that he has a legal or equitable estate therein, and is entitled to the possession thereof, describing the same as rquired by section 127, and that the defendant unlawfully keeps him out of possession.”
It would not be necessary to state how the plaintiff’s estate or ownership is derived. By a reference to the petition in this case it will be noticed that in the first three clauses thereof plaintiff brings herself within the two sections of the statute above cited, by alleging that she is the owner in fee.simple of the following described real property, situated in Logan county, Oklahoma Territory; then follows a description of the property by lots and blocks. Then follows the statement that said defendant, “Now is and ever since the 23rd day of November, 1897, has been wrongfully in possession of said real property, and to the exclusion of plaintiff.” This statement in the said petition contained, under the provisions of the statute above cited, is a sufficient statement of a cause of action. The demurrer being to the whole of the petition, and a good cause of action being stated in the *238first three paragraphs, of said petition, the demurrer was properly overruled.
The doctrine is laid down in Bliss on Code Pleading, ch. 20, p. 417, sec. 417, 3rd edition.
“A demurrer may be made to the whole petition, or to the statement of any of the causes of action, embodied in it, but if made to the whole pleading, it will be overruled if any of the statements are held to be good.”
A similar doctrine is enunciated in Pomeroy’s Code Pleadings, p. 603, sec. 577, 3rd edition:
“Where a complaint or petition contains two or more different causes ‘of action a demurrer to it as a whole, ir to all or some of the causes of action jointly, must fail, and be overruled, if any one of the separate causes of action included in the petition is good.”
The same author, p. 688, sec. 606, uses this language:
“If the demurrer is interposed to an entire answer containing two or more separate defences,-or to an entire complaint containing two or more causes of action, it will be overruled if there is one good defense, or one good cause of action;” and he there cites as authority for this statement: Jeffersonville M. & I. R. Co. v. Van Cant, 40 Ind. 233. MicPhail v. Hyatt, 29 Iowa, 137. Maudlin v. N. W. Turnp. Co. 48 Ind. 492. Excelsior Draining Co. v. Brown, 47 Ind. 19, and numerous other authorities.
The second assignment of error is that the court erred m overruling the motion for a new trial, and the plaintiff in error complains that the court prevented them from introducing evidence to show that the recitals in the tax deed were a mistake, and their contention is that they should have been allowed to dispute or contradict the recitals in the tax deed by evidence.
In the case of S. S. Cartwright v. S. S. McFadden, tried at the January term, 1881, and reported in the 24th Kans. at p. 662, the supreme court of Kansas say:
*239“The defendant however, for the purpose of bolstering up his lax deed offered to prove that the sale of the lots was not made in gross, but that each lot was sold separately. The plaintiff objected to this evidence, and the court below excluded it. We think that the court below rightfully excluded it, for it did not tend to show that the defendant’s tax deed is valid, but only that the sale was valid, and that he might have obtained a valid tax deed on the sale if he and the county clerk had been inore careful, and had made the tax deed speak the truth. Under the circumstances, he was really attempting to prove that his own tax deed was false, that it does not follow the sale that was actually made, and really that there was no such sale as described in his tax deed. lie was really attempting to contradict the recitals of his own tax deed, and to show that it is founded upon a falsehood.”
And in the syllabus of that case the supreme court of Kansas lay down the rule that it is not competent for a tax deed holder to introduce other evidence to contradict the recitals of his tax deed.
The court in this case held that the tax deed was void, as showing by its own recitals that it was invalid. The tax deed in this case recites as follows:
“Whereas, D. Y. Hanenkratt did, on the 23rd day of November, A. D. 1897, produce to the undersigned Ferdinand Eitterbusch, treasurer of the county of Logan, in the Territory of Oklahoma, a certificate of purchase in writing, bearing date of 18th day of November, 1893, signed by Joseph Stiles, who at the last mentioned dale was treasurer of said county, from which it appears that the county of Logan did, on the 18th day of November, 1895, purchase at public auction, at the door of the court house in said county, the tract, parcel, or lot of land, lastly in this indenture described, and which lot was sold to the county of Logan, for the sum of thirty-nine *240dollars and seventy-three cents, being the amount due on the following tract of land, returned delinquent for nonpayment of taxes, costs and charges for the year 1894— then follows the description of the premises in controversy, in this suit, and also the recital showing the assignment and transfer of all right, title and interest in the certificate of purchase, from Logan county to the plaintiff in error. We take the law to be well settled that where the recitals in the tax deed show a sale to the county, and a deed obtained by virtue of a sale to the county, that the deed must contain recitals to show the right of the county to purchase at such tax sales, that if the recitals of the tax deed show the county to be a competitive' bidder at said tax sale, such recitals renders the tax deed void; and that the recitals in a tax deed must show that the circumstances, surroundings and conditions giving the county the statutory right to purchase at such sale existed at the time of such purchase hy the county; and unless such deed does contain such recitals, it is invalid on its face.
In the case of Enos Larkin v. A. Wilson, reported in the 28th Kansas, at p. 367, the supreme court of Kansas, in a case then pending before that court upon a tax deed which contained the following recitals:
“Whereas, the treasurer of said county did, on the third day of May, 1864, by virtue of the authority in him vested by law, at the sale begun and publicly held, on the first.Tuesday of May, 1864, expose to public sale at the county seat of said county, in substantial conformity with all the requisitions of the statute in such case made and provided, the real property above described for the payment of taxes, interest and costs then due and remaining unpaid, upon said property, and whereas, at the time and place aforesaid, the treasurer of the county of Bourbon, state of Kansas, having offered to pay the sum of $30.58, being the whole amount of taxes and interest and costs then due and remaining unpaid on said property, *241and there being no. other bidder, the said property was struck off to it, at that price, which was the least quantity bid for,” the claim was made first that said deed was void, because it recites that the county, through the county treasurer, entered the lists at the tas sale as a competitiTe bidder, second that the county of Bourbon assigned the certificate of the tax sale. The court say:
“With the decisions of this court, the claim of plaintiff in error that the county was a competitive bidder, must be sustained, and the tax and the tax deed founded thereon, are both void. The recitations in the deed show that the county, through the county treasurer, made the first bid on the land, offering itself to pay for the land the sum of $80.58, being the whole amount of taxes, interest, and costs then due and remaining unpaid. There is nothing in the deed that shows or tends to show, that the land could not have been sold to some other party, for the same price, provided the treasurer had not made his bid or offer. If the treasurer had not made his bid, perhaps some other party might have, been willing to offer and pay the amount of the taxes, penalty and charges for the land, but as the county, through its treasurer, made that offer first, it thereby prevented others from making that bid, or, indeed, from making any bid as advantageous to themselves as that bid would have been.”
The court there cites: Norton v. Friend, 13 Kans. 333. Magill v. Martin, 14 Kans. 67. Babbit v. Johnson, 15 Kans. 252.
In this latter case, Judge Brewer, in rendering the decision and holding that the tax deed in that case, which recited a sale to the county as a competitive bidder, was void, cites with approval the case above cited in the 13th. Kansas, and the one in the 14th Kansas.
The statute of Kansas provides:
*242“If any land cann-ot be sold for the amount of the taxes, penalty and charges thereon, it shall be bid off by the treasurer, for the county, for such amount.”
The Statutes of Oklahoma of 1893, sec. 5660, p. 1054, provides:
“The county treasurer of each county within the Territory is hereby authorized at all tax sales hereafter made under the laws o fthis Territory, in case there be no other buyers offering the amount due, to bid off all or any real estate offered at such sale for the amount of taxes, penalty, interest and costs, due and unpaid thereon in the name of the county in which the sale takes place, the said county acquiring all the rights both legal and equitable that any other purchaser could' acquire by reason of said purchase.”
The two acts are practically the same, and the reasoning of the Kansas court will apply with equal force to the statute of Oklahoma, as to the statute of Kansas, and the courts in construing the statute of Kansas, say:
“Before a county, or a county treasurer can bid at all, the treasurer must wait until all other have failed or refused to bid on the land the required amount.”
Now if this is a necessary requirement, as a condition precedent to a valid bid being made by the county treasurer, then this fact should be set forth in the recitals in the tax deed. As in the language of the Kansas decision,
“There is nothing in the deed which shows or tends to show that the land could not have been sold to some other person for said sum provided the treasurer had not made his offer. The sale and the deed are both void.”
Now applying that doctrine to this case, what is the effect on the tax deed.question? In the tax deed in this case there is no attempt at any recital showing the absence of other bidders, or that anybody else had an oppor-*243limity to bid, or that it was necessary for tbe treasurer to bid it off for the county on account of the absence of bidders. But this deed relied upon by the plaintiff in error contains only the bald statement.that this land was bid off by the treasurer of Logan county, and the interests of Logan county assigned to this plaintiff in error. This recital, we have no doubt, renders the deed void.
Then if this tax deed was void and of no effect the plaintiff in the court below, the defendant in error, had a right to redeem from that tax sale, by tendering to the holder of the certificate, or pretended deed, the tax by him paid, and the interest, penalties, costs and subsequent taxes paid thereon, which the proof in this case shows was one hundred and sixty-five dollars, which amount the evidence shows was tendered to the plaintiff in error prior to the commencement" of this suit in the court below.
For the reasons herein expressed, we think the judgment of the court below was correct, and should be affirmed, which is accordingly done.
Burford, C. J., having presided in the court below, not sitting; all of the other Justices concurring except McAtee, J., not present