No. 83-215
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
ELIZABETH L. LONG,
Plaintiff and Appellant,
CLIFTON E. DILLON, HARRIET L. RYAN,
GRANITE COUNTY TREASURER, and the
GRANITE COUNTY CLERK & RECORDER,
Defendants and Respondents.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Granite,
The Honorable Robert J. Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry A. Wallace, Missoula, Montana
For Respondent:
James Bartlett; Hash, Jellison, O'Brien & Bartlett,
Kalispell, Montana
J. Allen Bradshaw, Philipsburg, Montana
Submitted on Briefs: November 10, 1983
Decided: March 29, 1934
Filed: MAR 2 3 1984
Clerk
Mr. Justice John C. Sheehy delivered t-he Opinion of the
Court.
E l i z a b e t h L . Long (Long) a p p e a l s from a summary judgment
against her entered in t h e District Court, Third J u d i c i a l
District, Granite County, on her claim to set aside and
c a n c e l a t a x d e e d , and f o r o t h e r r e l i e f .
Robert G. Mitchell and Niola M. Mitchell recorded a
w a r r a n t y deed i n J u n e , 1971 i n G r a n i t e C o u n t y , by which t h e y
acquired record t i t l e t o r e a l property described f o r brevity
a s L o t 1 3 i n Ranch C r e e k Meadows Two i n G r a n i t e County.
The G r a n i t e County T r e a s u r e r a s s e s s e d t-he r e a l p r o p e r t y
on t h e County Assessment books f o r t h e y e a r 1975 i n t h e name
of R. G. M i t c h e l l , c / o Gordon L . a n d E l i z a b e t h L. Long, a n d
l e v i e d t a x e s f o r t h a t y e a r i n t h e sum o f $ 4 8 . 0 4 .
The t a x e s w e r e n o t p a i d and t h e r e a l p r o p e r t y was s o l d
a t a tax sale. T h e r e b e i n g no b i d d e r a t t h e t a x s a l - e , t h e
r e a l p r o p e r t y was s t r u c k o f f t o G r a n i t e County a s p u r c h a s e r
on August 1 8 , 1976 f o r t h e d e l i n q u e n t t a x e s .
On J u n e 1 5 , 1 9 7 8 , a q u i t c l a i m d e e d was r e c o r d e d w i t h
t h e County C l e r k and R e c o r d e r i n G r a n i t e County from Gordon
I. Long t o E l i z a b e t h L.
, Long. On J u n e 1 5 , 1979, t h e r e a l
property s t i l l remained unredeemed from t h e t a x sale. At
that time, C l i f t o n E. Dillon paid t h e Treasurer of Granite
County t h e amount f o r which t h e r e a l p r o p e r t y was s o l d t o
Granite County, together with all subsequent delinquent
taxes, penalties, c o s t s and i n t e r e s t s , amounting i n a l l t o
t h e sum o f $366.66, whereupon t h e County T r e a s u r e r o f G r a n i t e
County assigned all of the county's interest in the real
property t o Dillon.
On J u l y 2 , 1 9 7 9 , D i l l o n p r e p a r e d and m a i l e d a n o t i c e o f
application f o r t a x deed, s u b s t a n t i a l l y i n compliance w i t h
section 15-18-202, MCA, addressed to "R. G. Mitchell, c/o
Gordon L . and Elizabeth L. Long". The notice was enclosed in
an envelope and addressed to "R. G. Mitchell, c/o Gordon L.
and Elizabeth L. Long, Rte. 1, Box 1465, Clinton, Montana,
59825" by certified mail, with returned receipt requested.
The post office returned the unopened letter to Dillon with a
notation thereon "Addressee Unknown."
The affidavit of Long indicates that she received in the
mail the certified letter which enclosed the notice, but that
she did not open it because it was certified and because it
was addressed to R. G. Mitchell instead of to Long.
After the certified letter was returned, Dillon caused
to be published in the Philipsburg Mail, a newspaper
published in Granite County, a notice of application for tax
deed substantia.lly in compliance with section 15-18-202 ( 3 ) ,
MCA, except that the notice is undated. The first
publication occurred on July 12, 1979.
On September 11, 1979, Clifton Dillon executed and filed
with the Granite County Treasurer an affidavit of service of
notice of application for tax deed (see section 15-18-202(5),
and 204, MCA) which we quote in pertinent part:
"Clifton Dillon, Being first duly sworn, deposes
and says:
That Notice of Application for Tax Deed on the
following described property, to-wit: [here
follows a description of the real pro pert.^] was
served upon R. G. Mitchell & Gordon & Elizabeth
Long, record owner of said land, by placing a copy
of said Notice in a registered letter addressed
with the last known mailing address of said R. G.
Mitchell & Gordon & Elizabeth Long, postage
prepaid, and mail-ed at the [Jnited States Post
Office in Kalispell on July 2, 1979, which date was
sixty (60) or more days prior to the date of
application for a Tax Deed on said property;. . ."
The affidavit as aforesaid, together with the unopened
certified mail envelope was filed with the County Treasurer,
who on September 11, 1979, issued a tax deed for the real
property to Clifton E. Dillon in the manner prescribed in
section 15-18-205, MCA.
On January 21, 1981, Long filed a complaint against
Dillon, the Granite County Treasurer and the Granite County
Clerk and Recorder, alleging she had sought to redeem the
property, but had been refused by the defendant County
Treasurer. She sought cancellation of the tax deed, and
damages for defamation of title to the land and for mental
and emotional distress, plus attorneys fees.
On March 29, 1982, a warranty deed from Robert G.
Mitchell and Niola M. Mitchell was recorded deeding title to
the real property to Gordon L. Long and Elizabeth L. Long,
the plaintiff herein.
Dillon moved the District Court for a summary judgment
of dismissal. After considering the various affidavits and
records on file the District Court granted the motion,
relying on our case of Adkins v. Redeye (1981), 196 Mont.
114, 639 P.2d 485. The District Court noted that all tax
notices, which Long was aware were due and payable yearly,
had been received by her a.nd mailed in the same manner and
form as the notice of application for tax deed which she had
declined to accept. Judgment of dismissal was entered based
on the order granting summary judgment and this appeal
ensued.
The single issue to be determined by us is whether Long,
as an owner of the property here involved was properly served
by Dillon with notice of his application for a tax deed.
In pertinent part, section 15-18-202, MCA, provides:
"Notice of application - - -
for tax deed (1) The
property sold for delinquent taxes or
his assignee must. . .
at least 60 days before he
applies for a deed, serve upon the owner of the
property purchased, if known, any purchaser of the
property under contract for deed, if known,. a ..
written notice stating that said property or a
portion thereof has been sold for delinquent taxes
giving. ..
the time. ..
when the purchaser will
apply for a tax deed. . ."
Unless such notice is given to the owner of the real
property, the time for redemption continues indefinite]-y .
Section 15-1 8-202 (1); Madden v. Zimmerman (1975), 166 Mont.
285, 291, 532 P.2d 414; Beckman Brothers v. Weir (1947), 120
Mont. 305, 184 P.2d 347.
In each county, an assessment book must be kept in which
appears the names of the person to whom the property is
assessed. Section 15-8-701, MCA. If the owners are absent
or unknown, the assessment is made to unknown owners.
15-8-501, MCA. Once land is listed in the assessment. hook,
it need not be described a second time, but any person
claiming the same and desiring to be assessed therefor may
have his name inserted with that of the person to whom such
land is assessed.. Section 15-8-702, MCA. In the usua.1
course it seems that the names a.nd addresses of owners of the
property are determined by the County Treasurer's office by
referring to its records, which are ta.ken from the
classification department's records, which are in turn taken
from the Clerk and Recorder's records. (See Madden v.
Zimmerman, supra, 166 Mont. at 288, 532 P.2d at 416).
We have held that the burden falls to the tax payer to
keep the taxing authorities informed of his interest in the
land and his current address. Madden v. Zimmerman, supra,
166 Mont. at 289-90, 532 P.2d at 417.
In Adkins v. Redeye, supra, the real property was
assessed to Phillip Redeye, c/o Mrs. Geraldine Huey, 2400
Donovan, Rellingham, Washington. Adkins mailed a notice of
application for tax deed to Redeye at the address shown on
the assessment list and the notices were returned to Adkins
marked "Moved - Not Forwardable." Adkins then published the
statutory notice and proceeded to obtain the tax deed to the
real property. It wa.s contended in the case that if Adkins
had searched the probate judgment book, he would have found
an order and decree of distribution which would have revealed
the true owners of the property. This Court held, following
the decision in Madden v. Zimmerman, supra, that the
applicant for a tax deed is not required to search all of the
legal records and to be on notice of all legal publications
that may affect title to the property.
While Adkins v. Redeye, supra, might seem to apply to
the case at bar, there is a substantial difference. In his
affidavit to procure the tax deed, Dillon stated that he had
served notice of application for tax deed upon "R. G.
Mitchell. and Gordon and Elizabeth L. Long" by mail. While he
attempted to serve R. G. Mitchell by mail, it is not accurate
to state that he had so served Gordon and Elizabeth Long.
The command of section 15-18-202, MCA, is that a notice
of application for tax deed must be served upon the owner of
the property purchased, "if known." The statute is not
limited to the names appearing on the assessment list, though
we have held that a purchaser need not go beyond the records
of the County Treasurer in determining the owner of property
in cases such as this. Madden, supra.
In Fariss v. Anaconda Copper Mining Company ( D.C. Mont.
1940), 31 F.Supp. 571-, Judge Pray noted that the term "owner"
in a like statute included the plural if there is more than
one owner. He also noted our holding in Small v. Hull
(1934), 96 Mont. 525, 32 P.2d 4, that such a statute, so far
as it attempts to bar the owner's right to attack a deed
issued without notice of the appl-ication therefore, amounts
to a taking of property without due process of law.
When as here, the applicant for the tax deed recites in
his affidavit that he has served by mail an owner of the
property, and such statement is not accurate, the applicant's
tax deed issued based on the affidavit is void and of no
effect. We held in Lowery v. Garfield County (1949), 122
Mont. 571, 208 P . 2 d 478 that the giving of a notice to an
owner is jurisdictional and unless the requirements of the
law in respect to such notice are complied with a tax deed
may not legall-y issue.
In reaching this decision, we give no effect to the deed
to Elizabeth J Lona from Gordon L. Long since that
instrument was outside of the chain of title. Our decision
is based upon the inaccuracy of Dillon's affidavit that he
had served an owner by mail when in fact such service had not
occurred. Under Lowery, supra, a tax deed based on such an
affidavit may not stand.
A second issue, raised by Dillon on appeal was that
Long's appeal here was not timely. The contention is based
on whether the 30 day period for appeal or the 60 day period
provided when an officer or agency of a political subdivision
is involved, is applicable. Rule 5, M.R.App.Civ.P. Dil-Ion
contends there was no real controversy between Lonq and the
officers of Granite County and therefore the 30 day
limitation ought to apply. However, Rule 5 does not admit of
such an exception. Since an officer or agency of a political
subdivision is a party to this action, an appellant has 60
days from the service of notice of entry of judgment in which
to file notice of appeal. That occurred here.
This cause is affirmed in part and reversed in part. We
affirm the order and judgment of the District Court granting
summary judgment and di-smissing the complaint against the
officers of Granite County. We reverse the summary judgment
insofar as Long is concerned, and remand the cause to the
District Court for further proceedings consistent with this
opinion.
TJ Concur:
ne
'3-
f)i'- L 3,
I
-Chief Justice ,LLc+F((
?/d6L -/
Justices
Mr. Justice Frank B. Morrison, Jr. dissents as follows:
I dissent. The majority bases its decision on an
inaccurate statement in Dillon's affidavit of service. The
majority concludes that because of this defect a tax deed
issued based on the affidavit is void. This rationale avoids
the real issue in this case: Who must a tax deed applicant
notify under section 15-18-202, MCA?
The statute specifically and exclusively sets forth the
steps required of a tax deed applicant to notify the property
owner. The statute requires service of notice "upon the
owner of the property purchased, if known." "The owner"
might mean the legal owner, the equita.ble owner, the owner as
disclosed by the records of the Clerk and Recorder, any of
the above, or - of the above.
all
I would hold that "owner" as used in this statute means
the person appearing on the assessment list as the owner of
the property. 72 Am. Jur. 2d 220, S 9 2 4 .
The reasons for such a construction are fourfold.
First, the phrase "if known" in subsection (1) of the statute
indicates that the tax deed applicant does not have a burden
to divine equitable owners where their interests are unknown.
Second, subsection (2) of the statute requires that the
"owner" is to be notified at the address disclosed by the
nortgage records. I infer that the owner to be notified is
the one who uses that address. Third, subsection (2)
indicates that notification of any known owner is sufficient
where the property is unoccupied. Thus, notification of an
equitable owner should not be required in addition to
notification of the record owner.
Finally, cases which have discussed the duty owed by tax
deed applicants for discovering owners entitled to notice,
have limited that duty:
"To r e q u i r e t h e p e t i t i o n e r t o s e a r c h o t h e r o r a l l
l e g a l r e c o r d s and t o be on n o t i c e o f a l l l e g a l
p u b l i c a t i o n s which may a f f e c t t i t l e t o t h e p r o p e r t y
would be o n e r o u s . . . T h e r e f o r e t h e burden must
f a l l t o t h e t a x p a y e r t o keep t h e t a x i n g a u t h o r i t i e s
informed o f h i s i n t e r e s t - -e -a n d
i n th l and h i s
c u r r e n t a d d r e s s . l1 (emphasis added)
Madd.en v . Zirnmerman ( 1 9 7 5 ) , 166 Mont. 285, 289-90, 532 ~ . 2 d
414, 417. Adkins v. Redeye ( 1 9 8 1 ) , 196 Mont. 1 1 4 , 1 2 0 , 639
D i l l o n gave t h e s t a t u t o r y n o t i c e w i t h t h e p r o p e r d a t e s
i n s e r t e d , by c e r t i f i e d m a i l t o t h e owners o f t h e p r o p e r t y a s
d i s c l o s e d by the record, utilizing the address of record,
namely, R. G. Mitchell, c / o Gordon L . and E l i z a b e t h J,ong,
Route 1, Box 1465, Clinton, Montana, 59825, and thereby
s a t i s f i e d t h e s t a t u t o r y w r i t t e n n o t i c e requirement.
Dillon s a t i s f i e d a l l requirements of an a p p l i c a n t for
t a x deed a s a m a t t e r o f law. I would therefore find the
d e c i s i o n o f t h e D i s t r i c t Court g r a n t i n g summary judgment in
favor proper.