I think the court's conclusion was correct and that the judgment should be affirmed. I do not agree however that the tax deed is void. It is contended that the deed is void because proof of service of application for the deed did not show service upon the occupant of the property or that the property was unoccupied. *Page 589
Section 2209, R.C.M. 1935, requires the purchaser of property sold for delinquent taxes to give notice "upon the owner of the property purchased, if known, and upon the person occupying the property, if the said property is occupied * * *."
The affidavit of service in this case does not specifically refer to the question of occupancy. Plaintiff contends that the county treasurer has no jurisdiction to issue a deed under section 2212, R.C.M. unless the affidavit shows that the land is unoccupied, or if occupied, that notice was served upon the occupant. The statute does not state what the affidavit should contain other than that it should show service of notice on those entitled thereto. Sec. 2212, R.C.M. 1935. The statute does not require the affidavit to state whether the land is occupied. To reach the conclusion arrived at in the majority opinion is to read into the statute something that is not there.
Here the land was in fact unoccupied and had been for 15 years prior to the issuance of the tax deed. Notice was actually given to the owner of the property Nancy E. Brown. No one else was entitled to notice. Section 2209, relating to notice, was fully complied with.
The tax deed was issued in March 1939 to Garfield county. It was in proper form and constituted prima facie evidence that notice of application for the deed had been served as required by law. Sec. 2213, R.C.M. 1935, subd. 6.
In July 1945 plaintiff who theretofore was a stranger to the title acquired a quitclaim deed from Mrs. Brown for the stated consideration of $1.00. But in July 1941 the county had already sold the property to defendant Harbaugh which plaintiff well knew when he obtained his quitclaim deed.
The question before us is whether plaintiff or Harbaugh has the superior right.
This court has gone a long way in protecting property owners whose property has been sold for delinquent taxes. But if this tax title is condemned we will be going further than we have ever gone before and I think beyond what the law permits or requires. I agree that our redemption laws should be liberally *Page 590 construed in favor of the delinquent taxpayer, but this does not mean that they should be rewritten by this court to grant rights not given by statute.
In Small v. Hull, 96 Mont. 525, 32 P.2d 4, we condemned a tax deed because notice of application for the deed was not served upon the owner. But in that case it was the owner who was complaining. We held too that since the giving of notice was jurisdictional, the action was not barred by the short statute of limitations. In this case Mrs. Brown, the then owner of the property, had notice of application for the tax deed. So far as she was concerned there was no want of jurisdiction to issue the tax deed. Plaintiff is in no different position than Mrs. Brown from whom he purchased long after the tax deed issued.
Kerr v. Small, 112 Mont. 490, 117 P.2d 271, was also a case where no notice was given to the owner.
It is contended that Jensen Livestock Co. v. Custer County,113 Mont. 285, 124 P.2d 1013, 140 A.L.R. 658, compels a holding that this tax deed is void. That case differs from this in important particulars. In that case the evidence showed that the land was occupied when application for the deed was made and that the occupant was not served with notice, and it was the occupant who was complaining and the question was raised before the running of the short statute of limitations. It is shown here that the land was unoccupied. Also I think the affidavit of service in this case prima facie at least, shows that there was no one occupying the land. It recites in part, "That I caused notice of application for tax deed to be served upon all of the parties interested in the real estate described in said notice." Then follows a statement that he caused the notice to be published in the Jordan Tribune, and by registering a letter to Mrs. Brown at Jordan.
The statement that he caused the notice to be served upon all interested parties followed by the statement of publishing and mailing to the owner is tantamount to a statement that the land was unoccupied, for if it were occupied then there would be need for more than mailing and publishing. *Page 591
The case of Kesselheim, Inc., v. Cocklin, 116 Mont. 150,148 P.2d 945, differs from this because there no affidavit at all was filed showing any service of notice of application for tax deed.
I do not believe the owner who had notice is in a position to complain because some imaginary occupant may not have had notice, and particularly should that be so where, as here, it is shown there was no occupant. Compare Milne v. Leiphart, 119 Mont. 263,174 P.2d 805. And this plaintiff who received a quitclaim deed from Mrs. Brown acquired no greater rights than Mrs. Brown had. To condemn this tax deed is to sacrifice substance for shadows.
Concluding as I do that the deed was and is valid, it is not necessary to resort to Chapter 100, Laws of 1943, to sustain it.
But if we treat the deed as void as against an occupant who was not served with notice of application for tax deed, I think the court was right in holding that plaintiff's action is barred by Chapter 100, Laws of 1943. It is barred by Chapter 100 unless that chapter is unconstitutional. It is asserted to be unconstitutional as being a special Act in conflict with section 26 of Article V of our Constitution in that it is a special law dealing with a situation "where a general law can be made applicable."
The law is general in the sense that it applies to all tax deed property. It is not local but applies to the whole state. The legislature has power to make reasonable classifications. Tonn v. City of Helena, 42 Mont. 127, 111 P. 715, 36 L.R.A., N.S., 1136. "A classification is not open to objection unless it precludes the assumption that the classification was made in the exercise of legislative judgment and discretion." Bank of Miles City v. Custer County, 93 Mont. 291, 19 P.2d 885, 887.
I am not able to say that the legislature acted arbitrarily and without judgment or discretion when it placed tax title property in a class by itself by prescribing a short statute of limitations for those who would assert the invalidity of such titles.
If intending purchasers are assured of a good title the county may obtain more on a sale of such property as it acquires through *Page 592 tax deeds under section 2235, R.C.M. 1935, and I think the legislature has the discretion to place all tax title property in a class in providing a short statute of limitations.
The majority opinion holds also that the statute of limitations, Chapter 100, Laws of 1943, cannot operate against void deeds. Whether Chapter 100, Laws of 1943, would bar an occupant of the property who did not receive notice of application for the tax deed need not be considered here.
The rule is that only those adversely affected by an unconstitutional act will be heard to question its validity. Pierson v. Hendricksen, et al., 98 Mont. 244, 38 P.2d 991; State ex rel. Griffin v. Greene, 104 Mont. 460, 67 P.2d 995, 111 A.L.R. 770; State ex rel. Riley v. District Court, 103 Mont. 576,64 P.2d 115.
If there were any such occupant he alone could question the validity of Chapter 100 on the point here considered, viz., that the deed is void because of want of service of notice on the occupant.
Then too the majority opinion seems to hold that Chapter 100, Laws of 1943, is in conflict with section 9024 which requires the payment of taxes in order to obtain title by adverse possession. I know of no principle of law that forbids one legislative assembly from passing a law in conflict with a prior statute. It is being done every day. Also so far as this record shows defendant Harbaugh may have paid the taxes since he acquired the land.
I think the judgment should be affirmed.