NO. 87-67
I N THE SUPREMF COURT O THE STATE O M N A A
F F O T N
I987
WILLIAM H . HUDSON,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
LEE M c D O N A ~ D a n d MARY McDONALD
and ALICE E. FLAGER a s County
T r e a s u r e r o f Madison C o u n t y ,
Montana ,
D e f e n d a n t s and A p p e l l a n t s .
APPEAL FROM: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Madison,
The H o n o r a b l e F r a n k M . D a v i s , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Thomas I . S a b o , Bozeman, Montana
For Respondent:
C h e s t e r Lloyd J o n e s , V i r g i n i a C i t y , Montana
S u b m i t t e d on B r i e f s : Sept. 25, 1987
Decided: December 2 2 , 1 9 8 7
Filed: ~rr 2 ? 1987
-
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant McDonald appeals the July 11, 1986, summary
judgment of the Fifth Judicial District Court, Madison Coun--
ty. The judgment voided McDonald's tax deed, validated
Hudson's redemption of his property, and quieted title in
Hudson against McDonald and the Madison County Treasurer. We
affirm.
The parties raise three issues for our review:
1. Under the tax deed application procedures of
5 15-18-202(1), MCA (1985), must notice be served on the
occupant of the subject property?
2. Does a published "Notice of Application for Tax
Deed" serve proper notice if it fails to comply with the
publication requirements of 5 15-18-202 (31 , MCA (1985)?
3. Is a delinquent taxpayer, who pays the redemption
amount to the County Treasurer after publication of a "Notice
of Claim of a Tax Title," entitled to redemption under
S 15-18-403, MCA (1985)?
The code sections cited in this opinion were repealed
by the 50th Legislature in 1987. However, the sections cited
are the law applicable to this case.
Plaintiff Hudson purchased an eighty-acre parcel in
Madison County, Montana, in 1968. From 1968 to 1980, Hudson
received his property tax notices at his office in the Mer-
cantile Securities Building in Dallas, Texas. He paid those
taxes. In June of 1980, Hudson moved his office to the Plaza
of the Americas in Dallas.
In November of 1980, the tax notice for 1980 was mailed
to the Mercantile address and duly forwarded to the Plaza
address. Hudson paid the taxes in November of 1980. Howev-
er, the post office only forwarded mail for one year and no
further tax notice was ever received at the Plaza address.
On July 20, 1982, Hudson's property was sold to Madison
County for delinquent taxes. Two years later, McDonald paid
the taxes and penalties due under assignment to the Madison
County Treasurer. On July 26, 1984, McDonald became the
assignee of a duplicate certificate of tax sale issued to
Madison County.
Throughout this period, Hudson's property had been
occupied on a seasonal basis by Hudson, his relatives and
friends. Household furnishings as well as vehicles and
maintenance equipment were stored on the premises year-round.
The property was also surrounded by a perimeter fence.
During 1984, a person physically occupied the premises with
Hudson's permission from July through October 20 and then
from November 15 through 30. The premises were also occupied
from July 10 through September 30, 1985.
On April 17, 1985, McDonald sent Hudson notice by
certified mail of McDonald's intention to apply for a tax
deed. The notice was sent to Hudson's Mercantile address.
McDonald also published, once a week for two successive
weeks, a "Notice of Application for Tax Deed" in the
Madisonian, a weekly newspaper in Virginia City. The publi-
cation commenced on April 25, 1985.
Prior to mailing and publishing the notice, McDonald
went physically upon the property to determine if it was
occupied. He knocked on the door and searched the premises
but found no one. He later telephoned the neighboring ranch
and was advised by an employee that Hudson's property was
occupied during the summer and fall.
However, McDonald never served notice on any occupant
of Hudson's property. No notice of delinquent taxes was ever
found posted on the property. Hudson did not receive the
notice by certified mail and did not know that noti.ce had
been published in the Madisonian.
On September 3, 1985, McDonald paid the Madison County
Treasurer $2,154.68 and received a tax deed for the property.
He promptly recorded the deed in the office of the Madison
County Clerk and Recorder. On September 12 and 19, 1985,
McDonald published in the Madisonian a "Notice of Claim of a
Tax Title" pursuant to 5 15-18-403, MCA.
Hudson first learned about the tax sale when a neighbor
of Hudson's property advised Hudson that the "Notice of Claim
of a Tax Title" had been published. In response, Hudson sent
the Madison County Treasurer a check for $2,334.31 on Septem-
ber 23, 1985, to redeem the property.
On September 30, 1985, the Madison County Treasurer
issued Hudson a certificate showing redemption of the proper-
ty from tax sale. However, a month later the Treasurer sent
a letter to Hudson stating that she had "voided out" Hudson's
redemption because McDonald's tax deed had been issued on
September 3, 1985.
Hudson then filed to quiet title. McDonald counter-
claimed for title. Both parties agreed to the facts recited
above and moved for summary judgment.
On July 11, 1986, the District Court entered judgment
ratifying Hudson's redemption of the property. The court
found that "there was a failure to comply with the scope,
intent and purpose of applicable tax sale proceedings." The
court strictly construed the tax statutes against McDonald,
stating: "To do otherwise would be to put judicial imprimatur
on acts which in effect forfeit $200,000 worth of property
for $2,000." It concluded that McDonald's tax deed was void
and quieted title in Hudson against McDonald and the Madison
County Treasurer. McDonald appealed on August 7, 1986.
On appellate review of a summary judgment, this Court
is free to examine the entire record and make appropriate
findings. Shimsky v. Valley Credit Union (Mont. 19841, 676
P.2d 1308, 1310, 41 St.Rep. 258, 260. We will uphold the
summary judgment if there is no genuine issue of material
fact and the evidence shows the moving party is entitled to
judgment as a matter of law. Vogele v. Estate of Schock
(Mont. 1987), P.2d , 44 St.Rep. 1950, 1953.
Issue 1. Notice
McDonald contends that his tax deed was valid and the
notice was proper. We analyze this issue under the guide-
lines of § 15-18-202(1), MCA. When property is occupied, the
statute requires service upon the occupant:
The purchaser of property sold for
delinquent taxes or his assignee must
... serve upon the owner of the prop-
erty purchased, if known ... and upon
the person occupying the property, if
the said property is occupied ... a
written notice ... [Emphasis added.]
We note that the word "and" maximizes the probability
that the delinquent taxpayer will receive notice.
McDonald was required by statute to serve the occupant
with notice. McDonald failed to do so. McDonald admits in
his affidavit for tax deed that he knew the property was
occupied. He stated: "That upon inquiry, Affiant has deter-
mined the property to be unoccupied, except ---- time
from time to
during the summer -- months, or as the weather permits,
and fall
property is occupied by owner and guests." [Emphasis added.]
McDonald's efforts to personally serve Hudson were in the
early spring, when Hudson's property was customarily unoccu-
pied. McDonald later agreed that the property was occupied
for the two months prior to McDonald's receipt of tax deed on
September 3, 1985. Yet the record reveals no subsequent
efforts by McDonald to serve the occupant. McDonald's admis-
sion in his affidavit, coupled with his lack of diligence in
serving the occupant, was fatal to proper notice under
§ 15-18-202 (I), MCA.
As we held in Long v. Dillon (Mont. 1984), 679 P.2d
772, 774, 41 St.Rep. 486, 489, if proper notice of applica-
tion for tax deed is not given to the owner of real property,
then the time for redemption continues indefinitely. Accord-
ingly, we hold that McDonald's tax deed was void because the
notice requirements of S 15-18-202(1), MCA, were not
followed..
Issue 2. Publication
McDonald asserts that he published a proper "Notice of
Application for Tax Deed." Our analysis of this issue is
governed by S 15-18-202(3), MCA. The statute prescribes the
form of publication for a "Notice of Application for Tax
Deed." The form reads:
Notice is hereby given that the under-
signed will on the day of I
19-, apply to the county treasurer of
county for a tax deed to the
following described property, to wit:
The "Notice of Application for Tax Deed," as published
by McDonald, contained two discrepancies. The first discrep-
ancy is that McDonald's notice read "Notice is hereby given
that the undersigned will on - after the 21st day of August,
or
1985 ... " (Emphasis added.) The words "or after" add an
element of ambiguity that is not in the statute. Such an
ambiguity could work against the delinquent taxpayer.
The second discrepancy is that McDonald described the
property as "E2NE4 of Section 35, Township 8 South, Range 1
East, Madison County, Montana," in his affidavit for tax
deed. However, in his published notice, the property is
merely described as "E2NE4, 35, 8S, 1E." The published
description omits the words section, township and range.
More importantly, it also omits the county where the property
is situated. In the case of a tax sale, such notice must be
strictly construed. We find that this truncated description
does not adequately identify the location of the subject
property. By failing to comply with the requirements of
S 15-18-202(3), MCA, the published description was fatally
defective. Yetter v. Gallatin County (1982), 198 Mont. 243,
245, 645 P.2d 941, 942.
As the District Court stated: "Let the tax deed appli-
cant be aware of these statutes, and let him adhere to the
letter thereof, particularly as to description of the proper-
ty, the content of the affidavits and notices, and the need
for the determination of occupancy."
In conclusion, the defective notice and publication
precluded the Madison County Treasurer from issuing a valid
tax deed. Edwards v. Walters (1983), 204 Mont. 374, 385, 664
P.2d 932, 937. We hold that the District Court's findings
and memorandum adequately support its conclusion that the tax
deed was void.
Issue 3. Redemption under $$ 15-18-403, MCA
The title of $$ 15-18-403, MCA, states: "Title conveyed
by deed -- procedure to cure defects." McDonald contends
that $$ 15-18-403, MCA, merely gave Hudson standing to bring a
quiet title action to challenge the validity of McDonald's
tax deed. In this issue, McDonald attempts to divert atten-
tion from the defective notice and publication.
McDonald's argument is misdirected. The focus of this
appeal is the propriety of the procedures before the issuance
of the tax deed, not after. A curative statute cannot vali-
date a void tax deed. Therefore, this issue is moot.
W e a f f i r m t h e summary judgment o f t h e D i s t r i c t Court.
W e concur: