In my opinion the majority opinion construes section 2209, Revised Codes 1935, too strictly and not with the liberality commanded by section 4, Revised Codes 1935.
I believe, since plaintiff was a tenant at will of the property and since he was using it for grazing purposes, he must be held to be an occupant within the meaning of that term as used in section 2209. "To constitute occupancy it is not necessary that a person build a house upon land, or that he live there," (Little v. Riley, 120 Misc. 707, 199 N.Y.S. 422, 424) or that the land be occupied or possessed in such a way as might ripen into title by adverse possession. West End Brewing Co. v. Osborne,227 A.D. 340, 238 N.Y.S. 345. Courts should construe statutes such as section 2209 liberally in favor of the occupants or owners, because "the purpose of the Tax Law is to provide for the collection of taxes — not to make easy the forfeiture of one's property to another." Little v. Riley, *Page 394 supra. The word "occupy" may have a variety of meanings depending upon the class of property involved and the purpose of the statute relating to occupancy. Where farm land is used and cultivated by the owner, it is occupied by him though he does not reside on it. Lyons v. Andry, 106 La. 356, 31 So. 38, 55 L.R.A. 724, 87 Am. St. Rep. 299.
I think, when dealing with grazing land, it is occupied by a person within the meaning of section 2209 when he holds it under lease and when his livestock graze on it, as here, and that this conclusion is not affected by the fact that livestock belonging to others also are permitted access to the land, or that the fences are dilapidated or that there are no fences at all on the property. Absence of a legal fence or presence of one which the county commissioners might remove as a nuisance has nothing to do with the question of whether grazing land is occupied. I think all the evidence shows the land was occupied by plaintiff when we give the word "occupancy" the proper meaning and that the case is not one where we should sustain the trial court because of conflicting evidence.
As to the point raised in the special opinion of Mr. Justice Cheadle, it should be remembered that the rule is that plaintiff has a sufficient interest to maintain the action if the person under whom plaintiff claims had title at the time of the sale. Smith v. Whitney, 105 Mont. 523, 74 P.2d 450.
Here plaintiff claims under the original owner, Sullivan. The relationship of landlord and tenant exists between Sullivan and this plaintiff.
In jurisdictions where the tax title is not derivative, but where a new title is created by the tax deed, as in this state (Jenson Livestock Co. v. Custer County, 113 Mont. 285, 124 P.2d 1013, 140 A.L.R. 658), its effect is to extinguish existing tenancies. 51 Am. Jur., Taxation, sec. 1071.
Hence it follows that if the tax deed here involved is valid plaintiff's rights as a tenant are extinguished by it. If the tax deed is invalid his rights are not affected. I think he has the right to question the validity of the tax deed by this proceeding *Page 395 in order to have it judicially determined whether his lease has been extinguished legally. The effect of the action is simply to have it adjudicated that Sullivan, under whom plaintiff claims, is still the legal owner of the property. I agree that plaintiff may not have all the relief which he has asked. He has no right on his own account to redeem the property. I think though that he is entitled to have the tax deed set aside.
In this state an action to quiet title to personal property lies. Section 9478.1, Revised Codes. A lease of real property is generally treated as personal property (Jeffers v. Easton, Eldridge Co., 113 Cal. 345, 45 P. 680; German-American Savings Bank v. Gollmer, 155 Cal. 683, 102 P. 932, 24 L.R.A., N.S., 1066), but if it be treated as an interest in real property as was done in the last cited case, the action still lies because of section 9479, Revised Codes.
I think the judgment should be reversed and judgment entered to the effect that the tax deed is invalid.
Rehearing denied April 16, 1946.