29 Mont. 38 | Mont. | 1903
prepared tbe opinion for the court.
This is an action to obtain relief from a tax deed to lot 1, block 25, Hauser Addition to the city of Helena. The plaintiff alleges that his agent applied to the county treasurer in 1899 to redeem the lot from tax sale and pay all delinquent taxes thereon, and that the county treasurer’s office informed him that the taxes of 1896, 1897 and 1898 were all that were delinquent, giving the amounts due for taxes for those years; that as a matter of fact the taxes for 1895 had not been paid, and a sale of the lot had been made for the taxes of that year, and a certificate of sale had been given to. the defendant, Cullen; that, after the deed had been given by the county treasurer to. said Cullen, the plaintiff tendered to him $250 in gold, the amount, paid by him in purchasing said- lands^ together with interest, and also the amounts paid by him for taxes‘on the property subsequent to the year 1895. The defendant denied the allegations, of this complaint generally, except that the tax deed had been delivered to him, and that there had been tendered to him $250, which he admitted. The case was heard, and the court below entered a decree in favor of defendant, from which this appeal is taken. The appeal is from the judgment, and all the-record contains is the judgment roll.
Counsel for plaintiff, as to the first proposition, cites Black on Tax Titles, Sec. 862, where we find the law upon this subject laid down in the following language: “But when a party, in redeeming from a tax sale, claims to have- paid all charges* demanded by the officer, it must appear, in order that he may be relieved as to any not demanded, that the fault was with the treasurer exclusively. The party must have demanded a search
Counsel also cites Corning Town Co. v. Davis, 44 Iowa, 622. An examination of that case discloses the following state of facts: After a, tax sale the plaintiffs applied1 to the treasurer of the county in which the land was situated “to pay all taxes due or delinquent upon the property of plaintiffs there assessed, and to redeem! from, all tax sales that might have been made of such lands.” A long list of property ivas given the officers, for the purpose of allowing them to make a careful examination of the hooks of the county and ascertain delinquent taxes and tax sales. A sum of money deemed sufficient, was paid to the officers for the purpose of paying the taxes and redeeming from sales. An examination was made, certain taxes! were paid., and a sunn of money returned to plaintiffs with the report that no further amount was. due for taxes, or required to redeem the land. The treasurer and cleric assured the plaintiffs that all taxes were paid, and all lands redeemed from tax sales. Tha officers did not discover the sale under which defendant’s deed was made until the time for redemption had expired, and prior thereto made no. report to plaintiffs that such sale had been made. -The amount, of money they received from plaintiffs and repaid to them was sufficient to redeem' from the tax sale under which defendant claimed title. The Supreme Court of Iowa correctly decided the point in the following language: “The other point, that, as it was the duty of the treasurer and clerk to- impart correct information to the agent of plaintiffs, applying to them to redeem the lands from tax sales and to pay all delinquent, taxes thereon, he was justified in relying upon their
Counsel also cites in support of this proposition the case of Could v. Sullivan, 84 Wis. 659, 54 N. W. 1013, 36 Am. St. Rep. 955, 20 L. R. A. 487. An examination of that case disr closes that plaintiff gave the taxing officer a list of land upon which he desired to pay taxes for 1884. The officer received payment, and delivered a receipt for all lands in the list, except one description, and indorsed on the .receipt, as to that descripu tion, “Not on the roll.” The plaintiff paid all the taxes levied and assessed upon the other lands according to' the tax receipt. It afterwards turned out that the land, the description of which the county treasurer had informed plaintiff was not on the roll, had been assessed and eventually sold for taxes, and a deed therefor given. The court properly held that the plaintiff offered to pay all taxes assessed against him, and relied upon the information of the treasurer that no taxes were assessed against this particular parcel of land, and was therefore in the same position as though he had paid all the taxes, and might contest the deed. ' It is equally apparent that this authority is not in point in this case.
The correct doctrine, in 'our judgment, is. announced by the Supreme Court of Iowa in the case of Moore v. Hamlin, 38 Iowa, 482, citing Bolinger v. Henderson, 23 Iowa, 165, and Noble v. Bullis, 23 Iowa, 559, 92 Am. Dec. 442. The plaintiff testified: “Soon after I had bought the lot I.ascertained that Mr. Iiockwood had a tax title; on it. I went there to ascertain how the matter stood. After doing this I was told perhaps there might be some back taxes on it, on which I went toi the treasurer, Mr. Cobb, and asked him.' if there were any hack taxes upon
The case of Lamb v. Irwin, 69 Pa. 436, is also. in point against the contention of plaintiff. The court usesi the following language: “Undoubtedly the failure to find the sale which was, overlooked must have been the fault of the treasurer exclusively, and therefore the party must have distinctly and clearly called his attention to the demand for a search for all sales. He must- not permit him to rest under the supposition that a particular sale only is. asked for in order to redeem.”.
Judge Cooley, in his work on Taxation (3d Ed., page 1049), says: “If by the mutual mistake of the officer and of the party the redemipjtion has failed, or if it is left in doubt whether the officer was. in fault at all, the case presents, no. other ground of equity than would exist in any case where, through inadvertence or misapprehension, the party has failed to. assert his right in due season; and he will be left by the law where his own negligence or inattention hasi placed him.”
We think these authorities conclusively settle the first proposition against plaintiff’s contention.
Plaintiff further insists that’ the ¡publication was not for a sufficient time. Section 387.7 of the Political Code provides: “The time of sale must not be less than than twenty-one nor more than twenty-eight days from the first publication, and the place must- be in front, of the county treasurer’s office.” The findings of the court are as follows.: “That notice was duly published under dates of December 30, 1895, January 6, 1896, and January 13, 1896, and that the sale took place January 27, 1896.” It thus appears that the publication was for three successive weeks, and that the time of sale was not less than twenty-one nor more than twenty-eight days from the first publication,' so that the plaintiff’s contention must be decided adversely to him.
Wo find no merit in appellant’s contentions, and. advise that tbe judgment, appealed from be affirmed.
For tbe reasons stated in the foregoing opinion, tbe judgment appealed from is affirmed.