¶1delivered the opinion of the court:
¶2*370Plaintiffs in error áre in no position to complain of the judgment in this case. The parties did not follow the mode of procedure prescribed by the code to settle the pleadings and determine the issues. On the contrary, by stipulation, they requested the opinion of the court as to whether certain paragraphs of the third answer, “if proven at the trial,” would relieve the defendants of refunding to the plaintiff the full amount of taxes he paid, with interest and penalties, as a condition precedent to the cancellation of his tax deed. Plaintiff’s motion to strike was, therefore, not determined and the truth of the allegations of the answer not admitted. Whether the opinion of that court was right or wrong in its view of the questions submitted under that stipulation is immaterial. The paragraphs of the answer remained a part of the pleadings and no evidence was offered to prove the facts alleged. On the contrary, the parties, upon submitting the case for trial, entered into a further stipulation wherein defendant in error consented that his tax deed should be cancelled by decree of the court, provided the full amount of taxes called for in his certificate of sale was refunded to him, with interest and penalties. The decree conformed to this stipulation. Plaintiff’s tax deed was in regular form, and, therefore, prima facie, valid. It was the only deed in evidence and was cancelled by consent upon condition that those who would benefit thereby should pay to the grantee therein a designated sum of money. If they failed to make payment within the time fixed, it is equally clear that they should, in addition to the sum designated in the decree, repay to plaintiff the money, if any, he has expended in the payment of taxes which have accrued against said property subsequent to the date of the decree. The judgment of the trial court will be modified accordingly, and as so modified, affirmed.
¶3Decision en banc.