whether such notice was received or not. And no failure of the owner to have such property assessed, or to have the errors in the assessment corrected, and no irregularity or error or omissions in the assessment of any property, or in the levying of any tax, shall affect in any manner the legality of any taxes levied thereon, nor affect any right or title to such real property which would have accrued to any party claiming or holding the same under or by virtue of a deed executed by the treasurer, as provided for by law, had the assessment of such property been in all respects regular."

This section (which was amended by section 2 to be found at page 412, Session Laws of 1893), was in force at the time of this assessment; it, by implication, probably, amended general section 3790, supra.

Section 22 of the same act as section 10 above quoted to be found at page 299 of the Session Laws of 1891, reads:

"Sec. 22. If any person, who is known to the assessor to be liable to give in a list and pay taxes agreeably to the provisions of this act, shall neglect or refuse to give in his list made and sworn to as hereinbefore prescribed, on or before the twentieth day of March in each year, the assessor shall fill out a list for such person putting therein all taxable property which he has reason to believe is owned by said person liable to taxation at its present full cash value."

Section 4 of an act entitled "An act concerning penalties and interest on delinquent taxes and providing for the manner of advertising and collecting the same, and repealing all acts in conflict therewith," approved, March 3, 1894, to be found at page 46 of the Session Laws (special session), 1894, and which was in force prior to the sale of this property, reads: When any lands or town lots are offered for sale for any taxes in counties of the second, third, fourth and fifth classes, it shall not be necessary to sell the same as the property of any person or persons, but the notice of such sale shall in all cases give the name of the person or persons against whom such lots or lands are assessed where the name

"Sec. 4.

or names are given on the tax roll. No sale of any lands or town lots for taxes shall be considered invalid on account of its having been charged on the roll in any other name than that of the rightful owner or charged as unknown, but such land must be in other respects sufficiently described on the tax roll to identify it, and the taxes for which it is sold be due and unpaid at the time of such sale."

The record discloses, that the schedules or lists of properties returned by the owners for this year in Rio Grande county could not be found. There was no evidence as to who or whether anyone returned this land for assessment for this year, other than its being assessed in the name of Catherine Van Buren, which would imply that she had returned it, or that the assessor, acting under the authority of sections 3795 and 22, supra, made and filed the list for her under the assumption that she still owned it. It now develops that she did not own it at the time the assessment or sale was made, although if the assessor assessed it as her's it would not be presumed that the change of ownership was then known to him, inasmuch as every officer is presumed to do his duty.

It is conceded in the briefs that the then owners failed to give in the property for assessment; had they done so it would have been assessed in the correct name, but upon account of this failure and a return being made by another or upon account of this failure, and no return being made at all, and the assessor concluding from what he knew that the land was still owned by Catherine Van Buren he assessed it to her. This assessment was not being made under the provisions of section 3812, supra, and the land was not listed under the "Unknown owners" list which calls for separate tracts of forty acres or less, but on the contrary an effort was made by the assessor (either upon the return of some one, or the failure of anyone to return it and his presumed knowledge of its ownership) to assess it in the manner provided by sections 3795 and 22, supra. It would seem that the other sections above quoted were enacted for the purpose of covering such cases. In the

face of their provisions it is not for the owner of land to neglect to perform a statutory duty in returning his property for assessment, and then expect to avail himself of his own wrong and claim that the land was sold in the wrong name, or was not sold in the manner provided for the sale of property of unknown owners, when the mistake of ownership would have been avoided by the owner performing his duty.

The judgment is affirmed.

Affirmed.

CHIEF JUSTICE CAMPBELL and Mr. JUSTICE GABBERT

concur.

1.

[No. 7552.]

DYETT V. HARNEY.

COUNTY COURT-Counter Claim Exceeding Jurisdiction-A counter claim demanding an amount which exceeds the jurisdiction of the county court, interposed in an action pending in that court, has not the effect to oust the jurisdiction. If defendant persists in such counter claim, it must be dismissed, leaving for determination only the issues raised upon the complaint.

2. EVIDENCE-Parol Varying Writing-One who accepts a lease of lands for a single year waives all promises for a longer term made during the negotiation.

So the acceptance of a lease of farm lands, silent as to who shall provide water for their irrigation, waives a promise to provide water, made by the lessor during and as a part of the negotiations-no fraudulent representations being made by the lessor, and relied upon by the lessee.

3. LANDLORD AND TENANT-Tenant Owing Rent-Effect as to SubTenant-That a tenant owes rent to his landlord has no relevancy to the demand of such tenant against his sub-tenant for rent accrued under the sub-lease.

4. PRACTICE IN THE SUPREME COURT-Harmless Error-Error in striking out an answer, reasonable time to amend being allowed, is not prejudicial.

Error to Saguache County Court.-Hon. M. N. JORDAN, Judge.

Mr. JESSE C. WILEY, for plaintiff in error.

Mr. JOHN I. PALMER and Mr. S. M. TRUE, for defendant

in error.

Mr. JUSTICE MUSSER delivered the opinion of the court:

The plaintiff below filed a complaint in the county court for a balance due on account of rent of certain land. In the complaint a written lease was set out from the plaintiff to the defendant showing that the land was leased at a certain rental from June 1, 1910, to March 1, 1911, and the defendant agreed to surrender the premises at the end of the term. To the complaint, the defendant filed an answer in which he first admitted that the lease was entered into as alleged and denied all other allegations in the complaint. Then, for an alleged cross-complaint, defendant set forth certain matters. The effect of this so-called cross-complaint was an admission of the written lease as set out in the complaint. It was alleged that when the land was rented the plaintiff represented that the defendant could have possession of it for three years, and that plaintiff would rent it for that term; that relying on these representations and on account thereof the defendant made many improvements on the land; that the defendant had received no further lease, and that plaintiff had no authority to lease for the term of three years, or any other term, and that his representations in this behalf were fraudulent and void, to defendant's damage in the sum of three hundred and fifty dollars. It was also alleged that the plaintiff represented that he would furnish enough water for farming purposes during the season of 1910, and for the raising of all crops and livestock; that the plaintiff failed and refused to furnish this water, and used it on his own crops, thus depriving the defendant of it; that, by this deprivation of water, defendant's hay-crop was reduced two hundred tons, which defendant would have har

vested if he had not been deprived of the water by the plaintiff; that the hay would have been worth two thousand dollars, and that he was damaged in that amount. Then, for a further answer, the defendant alleged that plaintiff was the lessee of the land, and had no authority to sublet it to defendant; that the plaintiff was in arrears for rent of the land to the owner; that the defendant had paid five hundred dollars on the rent to plaintiff, which sum the plaintiff retained, and did not turn over to the owner, and that whatever rent was due from the defendant rightfully belonged to the owner. The defendant prayed for damages in the sum of twenty-three hundred and fifty dollars. On motion of plaintiff, the cross-complaint and further answer were stricken from the answer, as sham and irrelevant, immaterial and insufficient, and the defendant was given ten days to further answer the complaint, should he so elect. The defendant did not answer further. A trial of the case resulted in a judgment of ten hundred and sixty dollars in favor of the plaintiff, the amount prayed for. The first contention of the plaintiff in error is that, when the answer was filed, the county court was ousted of jurisdiction, because the damage or claim of the defendant exceeded the court's jurisdictional limit of two thousand dollars, and he says that the county court should have certified the case to the district court. If the county court was ousted of jurisdiction in this way, there is no law providing that the case should have been certified to the district court, and without such a law it cannot be so certified. If the filing of a counter-claim or cross-complaint in excess of the jurisdictional limit will oust a court of all jurisdiction over a case, then every defendant in a civil action has it within his power to thus defeat any action that may be brought in the county court, and that court, while nominally having jurisdiction in civil actions concurrent with the district court, to the limit fixed, could not exercise that jurisdiction except at the grace of a defendant. Certainly the lawmakers of this state had no such result in contemplation. The county court has jurisdiction in any civil action where the debt, dam