Opinion by
Strang, C.:Action in ejectment, commenced March 23, 1888. The plaintiff claimed under a patent deed, which he introduced, and rested. The defendant claimed under a tax deed dated September 10, 1880. When this deed was offered in evidence, the plaintiff objected to its reception, for the reason that the deed was void, and void on its face. The objection was overruled and the deed received in evidence. Defendant rested. The plaintiff, by way of rebuttal, introduced the notice of tax sale upon which the deed was based and again rested. Judgment for the defendant. The plaintiff in error, plaintiff below, brings the case to this court, and asserts that the trial court erred in admitting the deed in evidence, for the reason that the deed was void because the tax-sale notice and the redemption notice were not sufficient.
The deed is good on its face. It was therefore not only admissible in evidence, but was prima facie proof of the regularity of all prior proceedings upon which it was based. (Gen. Stat. of 1889, ¶ 6991.) The contention of the plaintiff in error is, that the deed, being regular on its face, is prima facie evidence of the regularity of the proceedings upon which it is based, but not of the existence of such proceedings; and that the burden of showing the existence of such proceedings is upon him who claims under the tax title, and that, because the defendant did not show the existence of such proceedings, the court erred in giving him judgment in the case. This contention cannot be upheld. No such distinction as the one made by the plaintiff, between the existence and the regularity of the proceedings upon which a tax deed *804is based; exists in law. The statute which declares a taxs deed, regular on its face, prima fade proof of the regularity of the proceedings upon which it is based must be construed to mean, that such deed is prima fade proof of the existence as well as the regularity of the proceedings upon which it is based. A thing, the existence and regularity of which the law requires to accomplish a certain end, cannot be said to be regular until it exists. To protect the adverse party against the prima fade showing made by a tax deed, good on its face, the law furnishes an opportunity to rebut such proof by proving the non-existence of or want of regularity in the proceedings upon which a tax deed is based, except in those cases in which a tax deed has been of record for a period of five years or more. In the latter cases, under our statute, the title so conveyed has ripened into an absolute and indefeasible title, unless it can be shown that the taxes for which the land conveyed by the deed was sold had been paid or the land redeemed as provided by law. In this case, the plaintiff below introduced, by way of rebuttal, the tax-sale notice, and he now insists that, such notice rendered the sale of the land described in the tax deed void, and therefore the judgment should have been in his favor. In the first place, the irregularity in such notice does not render the sale void, but at most only voidable, in a proper proceeding for the purpose of setting it aside within the time prescribed by law. But, secondly, the tax deed upon its face showed it had been of record more than five years, and therefore, under our statute, it could not be attacked. The contention that the statute was not pleaded is not available. The statute provides only for a general denial in proceedings in ejectment. Under such plea, anything can be shown that tends to defeat the right of the plaintiff to the possession of the land.
It is recommended that the judgment of the trial court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.