I dissent. This court held in the recent case of Jensen Livestock Co. v. Custer County, 113 Mont. 285,124 P.2d 1013, 140 A.L.R. 658, that an occupant of land as well as the owner must be notified by the county pursuant to section 2209, Revised Codes of the county's intention to apply for a tax deed; that knowledge of the occupant of the county's intention derived from any other source than that required to be given by the county by the above section was ineffective. No notice was given the plaintiff in the instant case of the intention of the county to apply for the tax deed and the trial court held that no notice to the plaintiff was necessary for the reason that he did not occupy the land. The facts as to plaintiff's occupancy are these: April 1, 1926, George H. Sullivan, the homestead owner of the land, gave the plaintiff a three-year lease which was admitted in evidence as plaintiff's Exhibit "D." The lease contained these paragraphs:
"It is understood that the above described land has no fencing on same. In order for second party to use said land for grazing he will have to build one and one-half miles of fence at his own expense and after the expiration of this lease the party of the second part has the right to remove his property from said land.
"It is also agreed and understood, that if the second party remains in possession of said premises after the expiration of the term for which they are hereby leased such possession shall not be construed to be a renewal of this lease, but to be a tenancy at the will of first party which may be terminated upon thirty (30) days' notice given by said first party in the manner hereinbefore provided." *Page 389
The functions of the notice as required by section 2209 and process in a civil action are substantially the same. Relative to that question this court said in Small v. Hull et al., 96 Mont. 525,535, 32 P.2d 4, 7:
"`The law does not merely require the giving of notice before the tax deed can issue. It expressly extends to the property owner the right of redemption until such time as the notice is given. The right of redemption then becomes a vested property right, and one of which he can be legally deprived only in the manner provided by law, to-wit, the giving of the notice. The law, by its terms, gives to the notice the diginity of process of law, and to deprive him of his property, without giving him this notice, is to deprive him of his property without due process of law. The giving of this notice is just as much a prerequisite to the issuance of a tax deed that will bar the right of redemption as the service of a summons is a prerequisite to the entry of a valid judgment.'
"In the case of Lind v. Stubblefield, 138 Okla. 280,282 P. 365, 366, in speaking of this precise question, the court said: `In the present case the plaintiff alleged a failure of notice; that is, a failure to give the owner the written notice provided by section 9749, Comp. Okla. Stat. 1921 [68 Ohio St. 1941 sec. 451[68-451]]. Notice in this connection is analogous to process in the courts; and it is well known that a judgment, even so solemn a document as it is, is absolutely void unless the defendant has been served with process, with personal service, or some substituted service, provided by law. Otherwise he is deprived of his property without due process of law. And a judgment is equally as void, where it recites on its face that the defendant has been served with regular process, as any other void judgment, when the judgmentroll or the proceedings disclose that the defendant has not beenserved with process. A judgment of this character is void, absolutely void, and can be stricken down at any time. Pettis v. Johnson, 78 Okla. 277, 190 P. 681. The fact that the deed in the present case recited that proper notice was given did not bolster the title. The invalidity *Page 390 of a tax title or the rights of the owner of land must depend upon a more substantial basis than a mere recital in a deed. If certain vital requirements are lacking in a proceeding, their necessity cannot be removed, and a fundamentally defective title cannot be made a good title by simply drafting a good and proper tax deed.'
"Cases reaching the same result, where there were jurisdictional defects rendering the deed void, are: Baker v. Rogers, 148 Okla. 279, 1 P.2d 366; Ashur v. McCreery,150 Okla. 111, 300 P. 767; Jones v. McGrath, 160 Okla. 211, 16 P.2d 853; Urquhart v. Wescott, 65 Wis. 135, 26 N.W. 552; Neilan v. Unity Inv. Co., supra [147 Iowa 677, 126 N.W. 947]; Shelley v. Smith, 97 Iowa 259, 66 N.W. 172; Mote v. Thompson, Tex. Civ. App., 156 S.W. 1105; Harris v. Mason, 120 Tenn. [666], 668, 115 S.W. 1146, 25 L.R.A., N.S., 1011; Wildman v. Enfield,174 Ark. 1005, 298 S.W. 196; Clifford v. Hyde County, 24 S.D. 237,123 N.W. 872; see, also, 61 C.J. 1430, note 62; 26 R.C.L. 443." See also 42 Am. Jur. 7.
The clause in the Sullivan lease giving the plaintiff the right to remain in possession as a tenant at will, after his lease expired, and until he should be given thirty days' written notice to vacate, gave the plaintiff such right of possession that he could not be ousted until he received the kind of notice his lease contract called for. The provisions of the lease control.
In 32 Am. Jur. 790, section 936, it is said: "Necessarily, rules as to holdover tenancies have no application where there is a contrary mutual understanding as to the tenant's continued occupancy of the premises, * * *. The parties to a lease may therein expressly provide for a holding over, and what the nature of the tenancy shall be after the expiration of the term, and such an agreement will govern."
Certainly no one succeeding to the rights of the lessor, Sullivan, could oust the plaintiff until such successor in interest gave the notice to vacate as provided by the lease, and the lease in the hands of the plaintiff was a complete defense against any other who attempted to oust him. *Page 391
It must be remembered that when a county undertakes to acquire title to property for delinquent taxes its acts are in the nature of an ex parte proceeding by which property is confiscated, and that the statutes must be strictly complied with and a high degree of diligence exercised in locating and serving with notice all persons beneficially interested in the property in order to bring the property within the jurisdiction of the county officials whose duty it is to act in the premises. Jensen Livestock Co. v. Custer County, supra.
Section 2209 requires written notice to the occupant of the land as well as the owner before a valid tax deed can be issued.
As to quieting plaintiff's right of possession, as Sullivan's tenant, he cannot be ousted until Sullivan or some one authorized to act for Sullivan or his estate, gives the plaintiff the thirty days' written notice to vacate. On the expiration of the thirty days following such notice the plaintiff could be proceeded against as a trespasser.
As to plaintiff's right to maintain the action to set aside the tax deed, it is sufficient to say that if plaintiff's right of possession be treated as personal property, as some courts hold (Jeffers v. Easton, E. Co., 113 Cal. 345, 45 P. 680), the right exists by virtue of section 9478.1, Revised Codes.
Plaintiff has shown no title to the land by adverse possession. His possession of the land was never openly adverse. Sec. 9023, Rev. Codes; Price v. Western Life Ins. Co., 115 Mont. 509,146 P.2d 165; La Vasseur v. Roullman, 93 Mont. 552,20 P.2d 250.
The contention that one cannot possess or legally occupy unfenced land in Montana where range law is recognized is absurd. Only range stock is exempt from trespassing on unfenced lands in this state. The rule is firmly established in Montana that the owner of livestock who willfully drives or permits his stock to trespass upon unfenced lands may be held liable in an action for trespass. It was said in Schreiner v. Deep Creek Stock Association, 68 Mont. 104, 111, *Page 392 217 P. 663, 666, that: "Privately owned premises must be fenced as required by statute in order to enable the owner to maintain an action for trespass by the livestock of another unless * * * the trespassing animal has been placed or caused to be placed thereon by the owner of the animal with knowledge that the land is not open public domain." There are many cases in the books wherein it has been held that whether land is fenced or not is immaterial in an action for trespass. See Chilcott v. Rea, 52 Mont. 134,155 P. 1114, and cases cited.
The plaintiff continued in possession of the land involved as a tenant at will by virtue of his three-year lease dated April 1, 1926. The fact that he paid no rent was immaterial. Section 6744, Revised Codes, provides: "A tenancy or other estate at will, however created, may be terminated by the landlord's giving notice in writing to the tenant, in the manner prescribed by the Code of Civil Procedure, to remove from the premises within a period of not less than one (1) month, to be specified in the notice; * * *."
There is no other way to terminate a tenancy at will in this state than the mode provided by this section of our statutes. The notice provided by the lease was not given and plaintiff's tenancy was never terminated as provided by the above provisions of the statutes.
The negligence of the county land man who investigated the land and who made the affidavit that the land was unoccupied was palpable and inexcusable. It was upon his affidavit that the notice of intention to apply for a tax deed was based. He admitted he made no inquiries in the neighborhood of the land as to occupancy; the county records revealed the fact that the other half of the section was owned by the plaintiff yet no inquiry was made of the plaintiff as to the occupancy of the land; the three Skones, all of the same family, who testified and who were interested parties had lived in the neighborhood since 1912 but it does not appear that the county land man inquired of any of them as to whether the land was occupied or not; the plaintiff obviously fenced the *Page 393 land as provided by his lease as the lease stated there was no fence around the land and that he would be required to fence it if he desired to use it for grazing purposes, and the Skones had been neighbors of the plaintiff for more than fifteen years before the lease was made and were his neighbors when the land was fenced. Being interested parties, the county should not have relied alone upon any information obtained from that source but the address of Sullivan, the record owner of the land, was known and he was given notice by registered mail and later by publication but it does not appear that any effort was made to contact Sullivan or anyone who knew him to make inquiries about the land or whether it was occupied or not. Any attempt by the county to discover whether or not anyone claimed possession of the land or occupied it was far short of the essentials of service as heretofore set out. For a lack of proper inquiry as to the occupancy and failure to serve the plaintiff with notice as required by section 2209, the land was never brought within the jurisdiction of the county officials and the tax deed is void.