deed may be made prima facie evidence of its validity. This rule is not questioned in this case.

A legislature may not provide machinery for the collection of taxes, and then disregard the steps required, and cure the failure to follow the essentials by a curative statute or concurrent statute. 1 Cooley on Taxation (3d ed.), p. 518.

While the legislature of a State may declare that a tax deed shall be prima facie evidence of the regularity of the sale, and of all proceedings prior thereto, it cannot make such a deed conclusive evidence of the grantee's title. Marx v. Hanthorn, 148 U. S. 172; S. C., 30 Fed. Rep. 579; Taylor v. Deveaux, 100 Michigan, 581; McKinnon v. Weston, 104 Michigan, 642; Weeks v. Merkle, 6 Oklahoma, 714; Wilson v. Wood (Okla.), 61 Pac. Rep. 1045; Kelly v. Herrall, 20 Fed. Rep. 364; Bannon v. Burns, 39 Fed. Rep. 892.

A statute making a tax deed conclusive evidence of a complete title, and precluding the owner of the original title from showing its invalidity, is void, because not a law regulating evidence, but an unconstitutional confiscation of property. Cases supra and McCready v. Sexton, 29 Iowa, 356; Railroad Co. v. Galvin, 85 Fed. Rep. 811; Cairo &c. R. Co. v. Parks, 32 Arkansas, 131; Little Rock &c. R. Co. v. Payne, 33 Arkansas, 816; Wampole v. Foote, 2 Dakota, 1; Dickerson v. Acosta, 15 Florida, 614; White v. Flynn, 23 Indiana, 46; Corbin v. Hill, 21 Iowa, 70; Powers v. Fuller, 30 Iowa, 476; Taylor v. Miles, 5 Kansas, 498; Baumgardner v. Fowler, 82 Maryland, 631; Groesbeck v. Seeley, 18 Michigan, 329; Case v. Dean, 16 Michigan, 12; Dawson v. Peter, 119 Michigan, 274; Abbott v. Lindenbower, 42 Missouri, 162; S. C., 46 Missouri, 291; Roth v. Gabbert, 123 Missouri, 29; Wright v. Cradlebraugh, 3 Nevada, 341, 349; Young v. Beardsley, 11 Paige, 493; East Kingston v. Fowle, 48 N. H. 57; Sheets v. Paine (N. Dak.), 86 N. W. Rep. 117; Strode v. Washer, 17 Oregon, 50; Mather v. Darst, 13 S. Dak. 75.

The notice is bad if it differs from the assessment in giving the name of the person to whom the land is taxed. Marx v. Hanthorn, 148 U. S. 172; S. C., 30 Fed. Rep. 579; Harness v. Cravens, 126 Missouri, 233; Bettison v. Budd, 21 Arkansas, 578, citing Wait v. Gilmore, 2 Yeates, 330; Shimmin v. Inman, 26 Maine, 332; Castillo v. McConnico, 168 U. S. 674; Alvord v. Collin, 20 Pick. 418; Workingmen's Bank v. Lannes, 30 La. Ann. 871.

A tax deed cannot be made conclusive evidence of title in the grantee. An attempt to do so is a violation of the great principle of Magna Charter and would in many cases deprive the citizen of his property, by proceedings absolutely without warrant of law or of justice. It is not in the power of any American legislature to deprive one of his property by making his adversary's claim to it conclusive of its own validity. It cannot, therefore, make the tax deed conclusive evidence of the holder's title to the land, or of the jurisdictional facts which would make out title. Cases supra and Martin v. Barbour, 34 Fed. Rep. 701; Tracy v. Reed, 38 Fed. Rep. 69; Davis v. Minge, 56 Alabama, 121; Oliver v. Robinson, 58 Alabama, 46; Radcliffe v. Scruggs, 46 Arkansas, 96; Townsend v. Martin, 55 Arkansas, 192; Cooper v. Freeman Lbr. Co., 61 Arkansas, 36; Ramish v. Hartwell, 126 California, 443; Manguiar v. Henry, 84 Kentucky, 1; Larson v. Dickey, 39 Nebraska, 463; Roberts v. First Nat. Bk., 8 N. Dak. 504; Dever v. Cornwall (N. Dak.), 86 N. W. Rep. 227; Simpson v. Meyers, 197 Pa. St. 522; Salmer v. Lathrop, 10 S. Dak. 216; State v. Dugan, 105 Tennessee, 245; Virginia Coal Co. v. Thomas, 97 Virginia, 527. Springer v. United States, 102 U. S. 594; Turpin v. Lemon, 187 U. S. 551; Ontario Land Co. v. Yordy, 212 U. S. 152; Central Railway v. Georgia, 207 U. S. 127; King v. Mullins, 171 U. S. 404; Kentucky Union Co. v. Kentucky, 219 U. S. 140; Castillo v. McConnico, 168 U. S. 674, are not in point.

Marx v. Hanthorn, supra, has been followed in Clark v.

Argument for Appellant.

231 U. S.

Mead, 102 California, 519; Bennett v. Davis, 90 Maine, 107; Baumgardner v. Fowler, 82 Maryland, 639; and see Soper v. Lawrence Bros. Co., 201 U. S. 370; Wilson v. Wood, 10 Oklahoma, 284; Meyer v. Kuhn, 65 Fed. Rep. 705; Bannon v. Barnes, 39 Fed. Rep. 895.

A legislature cannot enact a statute which denies the owner the right to show that the defects were in excess of those authorized by the levy. Lufkin v. Galveston, 11 S. W. Rep. 340.

In this case the essential or jurisdictional steps provided by the statute were not complied with. The publication was defective. Cooley, p. 918; Games v. Stiles, 14 Pet. 322; Martin v. Barbour, 34 Fed. Rep. 701; S. C., 140 U.S. 634.

The affidavit of publication is the only evidence admissible of the facts required to be stated therein, and cannot be supplemented by parol evidence. Rustin v. Merchants' Co., 23 Colorado, 351; Salinger v. Gunn, 61 Arkansas, 414; Martin v. Allard, 55 Arkansas, 218; Coit v. Wells, 2 Vermont, 318; and see §§ 4079, 4080, Comp. Laws of New Mexico, 1897.

As to necessity of tax officers following this provision of the statute, see Martin v. Barbour, 140 U. S. 644; 1 Cooley on Taxation, 3d ed., 518.

Plaintiffs are entitled to equitable relief. Ely v. New Mexico &c. Ry. Co., 129 U. S. 291.

Where property is sold for more than is due, whether the excess is due to an illegal levy or illegal penalties and costs, the officer has no jurisdiction to sell, and it is void, notwithstanding curative statutes. Lufkin v. Galveston, 11 S. W. Rep. 340; Treadwell v. Patterson, 51 California, 637; Huse v. Merrim, 2 Greenl. 375; Case v. Dean, 16 Michigan, 12; Eustis v. Henrietta, 91 Texas, 325; Alexander v. Gordon, 101 Fed. Rep. 91; Ensign v. Barse, 107 N. Y. 329; Harper v. Rowe, 53 California, 233; Warden v. Brown (Cal.), 98 Pac. Rep. 252; Devoe v. Cornell, 10 N. Dak. 123.

A deed of land sold for non-payment of taxes which discloses that the sale was made on a day which was not the day authorized by law, is void on its face, Redfield v. Parks, 132 U. S. 239; Coulton v. Stafford, 56 Fed. Rep. 569, and a curative statute cannot aid it. Rickett v. Knight, 16 S. Dak. 395; Rush v. Lewis & Clark Co. (Mont.), 95 Pac. Rep. 836; Hannerkratt v. Hamil, 10 Oklahoma, 219; Magill v. Martin, 14 Kansas, 7; Dyke v. Whyte, 17 Colorado, 296.

Mr. Harry H. McElroy and Mr. Harry M. Dougherty for appellee.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

This was a suit to quiet the title to three tracts of land in Quay County, in the Territory of New Mexico. In the court of first instance a demurrer to the complaint was sustained and, the plaintiff declining to amend, a decree of dismissal was entered, which subsequently was affirmed by the Supreme Court of the Territory. 16 N. Mex. 442. An appeal from the decree of affirmance brings the case here, under the act of March 3, 1885, 23 Stat. 443, c. 355.

The complaint purported to state four causes of action. In the first, embracing all the tracts, it was alleged that the plaintiff was the owner in fee simple and that the defendant was making some adverse claim, not described. In the others, each embracing a single tract, the plaintiff's ownership was reiterated and it was alleged that the defendant was claiming title under tax deeds issued in consummation of tax sales which were characterized as

void for designated reasons. But notwithstanding its form, the complaint, as the record discloses, was treated in both of the territorial courts, with the acquiescence of the parties, as intended to challenge the validity of the tax deeds only upon the grounds designated in the last

three causes of action; that is, as if the general charge in the first cause of action was intended to be restrained and limited by the more specific charges in the others. We therefore treat the complaint in the same way.

It was not alleged that the lands were not subject to taxation, or that the taxes on account of which the sales were had were in any wise invalid, or that the taxes or any part of them had been paid or tendered, or that they had not been delinquent for such a period as justified their enforcement by a sale of the lands, or that the sales were in any wise tainted with fraud, or that there had been any attempt to redeem the lands, or any of them, within the three years allowed therefor, or that that period had not elapsed after the sales and before the deeds were issued. On the contrary, the sole grounds on which the complaint assailed the tax title were (a) that the sales were "not sufficiently advertised," (b) that proof of publication of the notice of sale was not transmitted by the printer to the county collector "immediately after the last publication," (c) that the collector did not cause to be made an affidavit of the public posting of the notice of sale and did not cause proof of publication or of posting to be deposited with the probate clerk, (d) that the probate clerk did not carefully preserve" any such proofs, and (e) that the amount of the delinquency sought to be satisfied by the sales was in one instance 16 cents, and in another 24 cents, more than the taxes levied on the particular tract.

Plainly, the allegation that the sales were "not sufficiently advertised" was purely a conclusion of law, and must be disregarded. No facts being set forth to sustain it, the statement of the conclusion was merely an empty assertion, and, under the rule that a demurrer admits only facts well pleaded, the conclusion was not admitted.

The charge that the delinquency sought to be satisfied by the sales was in excess of the taxes levied must be read in connection with the fact, otherwise appearing in