In this case there appears a motion to dismiss the proceedings in error, for the reason that the record does not show that the amount in controversy exceeds the sum of one hundred dollars, and contains no certificate of the trial judge that the cause belongs to one of the excepted cases; but as both of these defects have been cured by evidence and amendment, the motion will be overruled, and we will consider the merits of the petition in error.
Under the petition, the case can be summarized as follows : The holder of a third mortgage buys a tax-sale certificate on the property mortgaged; on the foreclosure of the second mortgage he buys the legal title to the lands, subject to the lien of the first mortgage. He is now the owner of the lands in fee, subject only to the first mortgage ; he is in possession and entitled to the rents, issues and profits thereof, and is in duty bound to pay the taxes thereon. The tax liens he has formerly acquired merge in his superior title, and in paying subsequent taxes he performs his legal duty and acquires no lien superior to the title he holds under such sale, as there is none. Keith v. Keith, 26 Kan. 26; Leppo v. Gilbert & Gay, 26 id. 138; Black on Tax Titles, § 279, and cases cited.
*199If the tax-sale certificate had been transferred by him prior to his purchase of the legal title, the purchaser would have acquired a good title thereto, and the purchaser’s lien would have been a first lien on the property; but we cannot presume this to have been done. We may presume, to support the judgment, that the contrary, if allowable under the petition, as we think it was, was proven. If a motion to make the petition more definite and certain by setting up the date of the transfer, hacl been made, it must have been required ; but, in the absence of such a motion, it was competent for the court to receive evidence on that subject, and it will be presumed that the evidence supported the judgment.
Under paragraph 6902, General Statutes of 1889, Mr. Gordon had the right to demand that the taxes be paid out of the proceeds of the sale, before applying them to the amount due on the second mortgage; but failing to do this, he cannot now complain. The judgment of the court below will be affirmed.
McElroy, J., concurring.