
    [No. 3436.]
    Empire Ranch & Cattle Co. v. Lumelius.
    1. Tax Titles — Tax Deed Not Recorded. A tax deed is without effect to set in motion the statute of limitations, until recorded.
    
      Decided October 14, A. D. 1912.
    Rehearing denied November 11, A. D. 1912.
    2. Evidence — Documents Pleaded But Not Proven, are considered as non-existing.
    
      Appeal from Washington District Court. Hoe. H. P. Burke, Judge.
    Mr.B. H. Gilmore, for appellant.
    Mr. Isaac Peltoe, for appellee.
   Cunningham, Judge.

On February 13, 1907, appellee brought his action in the district court of Washington County to quiet title to section thirty-three (33), township'three (3) north, range fifty (50) west, Washington County. On the trial it was stipulated that the plaintiff had a good title to the land in question, unless the same had been divested by tax deed and the statute of limitations. Appellant based its title upon a tax deed, which, according to its answer, was not filed for record until November 18, .1902 — less than five years prior to the filing of- plaintiff’s complaint. Therefore, it will not be necessary to consider the defenses set up by appellant in its answer, which are based upon the statute of limitations. The tax deed upon which the defendant predicated its claim of title was not intioduced in evidence. Therefore, under the ruling in No. 3432, Empire Ranch & Cattle Company v. Langley, ante 49, the judgment of the trial court, which went in favor of the plaintiff, must be affirmed, and it will, not be necessary to consider the other alleged defects in appellant’s title.

The judgment of the trial court is affirmed.

Per Curiam.

Morgae, Judge, not participating.  