Opinion of the Court-Stewart, J.

rado, and of this state, upon this subject. Session Laws of Colorado, 1879, p. 155, reads:

"If there shall be no bid for any tract offered, the treasurer shall pass it over for the time and shall reoffer it at the beginning of the sale next day, until all tracts are sold."

The statute of this state, however, does not provide that it shall be first offered, and if not sold, that it may be offered on the next day, and the county may become the purchaser. The statute of this state provides "that the assessor may sell the whole thereof, and if there is then no purchaser on the first day that the property is offered for sale, then when the property is offered thereafter for sale and there is no purchaser, the same may be struck off to the county." In other words, this statute requires the assessor to first offer the property generally, and if there is no offer to purchase, then he may again offer the property upon the same day or at any time subsequent to the first offer, and if there be no purchaser, then the same may be struck off to the county. We think it sufficiently appears from the certificates of tax sale and the deed, that this course was substantially pursued in the sales covered by said certificates, and that the county was not a competitive bidder.

The contention that the notice of sale for delinquent taxes and the certificates do not show when the purchaser will be entitled to a deed, may be considered together, and are based upon the contention that, while it is true, that the first tax sale was regular and the certificate issued in accordance with the law, as it appeared upon the statute books, and that the deed was regular and made in accordance with the law as it appeared on the statute books, yet inasmuch as the certificates and deed show upon their face that the sale was conducted and such certificate and deed issued under the provision of sec. 1530, Rev. Stat., as amended by the laws of 1895, p. 101, and Rev. Stat., sec. 1532, as amended by the laws of 1891, p. 235, the charge is made that such amendatory acts have not been passed as required by the constitution of this state, therefore the sale and deed are void and the defendant acquired no title to said property.

Opinion of the Court-Stewart, J.

Counsel also contends that the deeds are void for the reason that the property was sold subject to redemption within two years from date of sale, as provided by the amendment of sec. 1548, laws of 1895, p. 101, while the original section before amendment allows one year from the date of purchase for redemption, and that said amendment was not passed according to the requirements of the constitution.

Rev. Stat., sec. 1544, provides:

"After receiving the amount of the taxes and costs, the collector must take out in duplicate a certificate, dated on the day of sale, stating (when known) the name of the person assessed, a description of the land sold, the amount paid therefor, that it was sold for taxes, giving the amount and year of the assessment, and specifying the time when the purchaser will be entitled to a deed.”

Rev. Stat., sec. 1555, provides:

"The matters recited in the certificate of sale must be recited in the deed, and such deed, duly acknowledged or proved, is prima facie evidence that:

"1. The property was assessed as required by law; "2. The property was equalized as required by law;

"3. The taxes were levied in accordance with law;

"4. The taxes were not paid;

"5. At a proper time and place the property was sold as prescribed by law, and by the proper officer;

"6. The property was not redeemed;

"7. The person who executed the deed was the proper offi

cer.

"8. Where the real estate was sold to pay taxes on personal property, that the real estate belonged to the person liable to pay the tax."

And Rev. Stat., sec. 1556, provides:

"Such deed duly acknowledged or proved is (except as against actual fraud) conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor, inelusive, up to the execution of the deed."

It will thus be seen that the tax certificate and tax deed to which objection is made recite facts which it was not necessary

Opinion of the Court-Stewart, J.

to recite in either. The statute makes certain matters in the deed prima facie evidence of certain facts, and conclusive evidence as to certain other facts, and requires the deed to recite the matters required to be recited in the certificate of sale. But, assuming that under the recitals in the tax certificate and deed the officers acted under the authority of the amendatory acts, which counsel claim are unconstitutional, yet we do not believe that the appellant is in a position to question the constitutionality of such acts.

It will be observed that this property was assessed for taxes in the year 1895, and that it was sold in July, 1896, for the delinquent taxes for the year 1895. It was appellant's duty to bear his share of the burdens of taxation. He knew what the law was; he knew that his property was subject to taxation; he knew that taxes became delinquent once a year, yet from the year 1895 until after this action was commenced, the appellant gave no attention whatever to the duty imposed upon him, to discharge his share of the burdens of taxation. From the evidence it appears that he made no inquiry about the taxes; that he never offered any payment; that he never ascertained whether the property had been sold. He permitted others to pay the taxes; he stood by and permitted a tax deed to be issued in 1905 for the delinquent taxes for the year 1895. From 1895 up until this suit was commenced, August 6, 1906, the plaintiff exercised no fixed, specific ownership over the property in controversy. His possession was casual and questionable, and after the execution of the tax deed in 1905, the defendant appears to have been in possession, and long before that the plaintiff's possession was divided with others.

Under all the facts in this case, we are clearly of the opinion that the appellant is not in a position to raise the constitutionality of the acts in question. The appellant is certainly guilty of such laches in paying his taxes and asserting his right and ownership to this property that he should not now be permitted to come into a court of equity and ask that such silence be permitted to inure to his benefit.

Opinion of the Court-Stewart, J.

What constitutes laches depends upon the circumstances of each case. No arbitrary rule exists, and it is for the courts to determine from all the facts and circumstances surrounding each particular case whether or not the party is guilty of laches. (16 Cyc. 152; Sayers v. Burkhardt, 85 Fed. 246, 29 C. C. A. 137.) As was said by the supreme court of Illinois in the case of Oakley v. Hurlburt, 100 Ill. 204, where the owner of property suffers the same to be sold for taxes, and the purchaser takes possession and pays taxes for the period of twelve years, the owner will not be heard to allege under such circumstances that he was injured in that way. In this case, the respondent and his grantor have paid the taxes from 1895 to the commencement of this suit and the appellant has never paid one cent of taxes. A person may by his own acts or by his own omission to act, waive right which he might otherwise have under the provisions of the constitution. (8 Cyc. 791.) The certificate of sale issued in July, 1896, for the delinquent taxes for the year 1895 is not void, and the deed made in April, 1905, upon said tax sale certificate, even though the tax deed covers sales for other years, would not for that reason be void. While it is true that after property has once been sold for delinquent taxes to the county, it cannot again be offered for sale during the period of redemption, still if the sale in 1896 was valid, and the deed issued thereon is valid, it is immaterial whether the subsequent sales are valid or not. The grantee's title would be complete under the sale made in 1896 for the delinquent taxes for the year 1895, and the deed issued thereon.

In the case of the Co-operative Savings & Loan Assn. v. Green, 5 Ida. 660, 51 Pac. 770, this court, speaking through Justice Sullivan, says:

"Substantial compliance with the requirements of the law in making assessment is all that is necessary. If property is subject to taxation, it cannot escape through some technical failure of the officer to perform his duty, unless it has actually misled the party to his injury."

The appellant not being in a position to question the regularity of the passage of the amendatory acts under which the

Points Decided.

tax sale was held and the certificate and deed issued, and the law having been substantially complied with, and it appearing that the appellant has in no way been misled, we are clearly of the opinion that he should not escape the provisions of the law as to the taxation of his property and the divestment of title thereunder. The law having been substantially complied with, and the sale of 1896 for the delinquent taxes for 1895 being valid, the court committed no error in holding that the plaintiff had been divested of his title to said property.

The judgment of the lower court will be affirmed with costs.

Ailshie, C. J., and Sullivan, J., concur.

(January 20, 1908.)

JOSEPH C. DUNBAR, Respondent, v. WALTER GRIFFITHS, Appellant.

[93 Pac. 654.]

AMENDMENTS TO PLEADINGS-A MATTER OF COURSE-RIGHT A MATTER OF DISCRETION.

1. Under the provisions of sec. 4228, Rev. Stat., the parties may amend any pleading once as a matter of course at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, but such right of amendment without leave of court does not extend beyond the time allowed by law for filing a demurrer or answer where no such pleading has in fact been filed, and the right to thereafter file such a pleading rests in the sound discretion of the court.

2. Under sec. 4229, Rev. Stat., great liberality must be exercised in the allowance of amendments to pleadings.

3. Where a party applies to the court under sec. 4229 for permission to file an amended pleading, and the application is one that addresses itself solely to the discretion of the court and the party asks leave to make a showing as to the reasons why he had not previously offered the amendment and why he has delayed, and his reasons for invoking the discretion of the court, it is an