198 P. 130 | Mont. | 1921
prepared the opinion for the court.
This is an appeal by plaintiff from a judgment rendered against it by the court, sitting without a jury, in a claim and delivery action. The property in dispute is described in the complaint as “One thirty-two (32) horse double Minneapolis traction engine, No. 9060, and all of the parts and fixtures attached thereto, a part thereof, or in any wise thereto belonging.” All of the defendants except John Doe, who does not appear, unite in an answer admitting that plaintiff is an Oregon corporation, engaged in the sale of traction engines and other farming machinery and implements ; admit the copartnership alleged to exist between Arthur Freebury and Harry Freebury, and deny generally and specifically all other allegations of the complaint. At the close of plaintiff’s evidence, the defendants moved “for judgment dismissing this action and a finding by the court in behalf of the defendants, etc.” This motion was sustained as to the defendant W. S. Arnot and the trial proceeded as to the other answering defendants. The cause having been finally submitted, the court subsequently rendered its judgment against the plaintiff and in favor of all of the answering defendants, to the effect that plaintiff take nothing and that defendants recover their costs.
The engine referred to in the mortgage is described therein as “One thirty-two (32) horse double Minneapolis traction engine, No. 9060, and all of the parts and fixtures attached thereto, a part thereof, or in anywise thereto belonging.” In the foreclosure proceedings the engine is referred to as No. 960; in the bill of sale issued by the county treasurer the engine is referred to as bearing the number 6090, Each party maintains that his adversary committed a fatal error in the use of the wrong number. The number is not the only means of identifying the property, nor the only description given. Furthermore, it is the Fitzpatrick engine moved by the sheriff in 1914 to the place where it was found by the assessor in 1915 and 1916, sold by the county treasurer in 1916, taken possession of -by the respondents, and was in their possession at the time this action was commenced, and for aught this record shows, all these numbers may have appeared on this engine, or on some of the parts thereof. No
Much discussion is had in the briefs relative to the
It is true that the burden was upon the appellant to
If the tax title is valid, then the claim of the respondents is superior to any other claim or title having its origin prior thereto. If the tax title is invalid, then the respondents have no standing in this cause.
Appellant attacks the constitutionality of section 2684,
Some statements are made relative to the constitutionality of section 2517, Revised Codes, which provides that personal property may be assessed to “unknown owners” when the name of the owner is unknown, but appellant seems to base his argument on his claim that it would be an invasion of appellant’s constitutional rights to apply that section to the facts in this case.
It is the duty of the assessor to “ascertain the names of all
The appellant was in the business of selling this kind of property. One of its witnesses, Mr. Morris, testified that he
It seems quite clear that from the facts in this case there was a reasonable doubt as to the ownership of this property, and that the assessor used reasonable diligence in endeavoi’ing to ascertain the name of the owner. It is entirely idle to say that property, whose ownership is unknown, or if the owner is known, cannot be found for the purpose of serving notice, is for that reason rendered exempt, or rather immune, from taxation. “Assessments under statutes such as these are intended to be effectual against the property, regardless of the owner, placing it in this respect upon the footing of a proceeding in rem.” (O’Grady v. Barnhisel, 23 Cal. 287, 293.) In this connection, we also refer to Birney v. Warren, 28 Mont. 64, 72 Pac. 293.
Appellant further complains that at the tax sale W. S. Arnot was the highest bidder and that a bill of sale was
No reversible error appearing in this case, we recommend that judgment be affirmed.
For the reasons given in the foregoing opinion, the judgment is affirmed.
Affirmed.