134 P. 302 | Mont. | 1913
delivered the opinion of the court.
On November 4, 1911, the respondent, Matthew Cullen, brought this action as plaintiff against the American Mining Company, Ltd., H. H. Stackpole, Carl Kleinschmidt, Albert Kleinschmidt, George F. Hale, Alfred W. Hale, Mattie F. Curtis, John G. Brown, Reinhold H. Kleinschmidt, Western Mortgage & Warranty Title Company, and Anna Davenport, to quiet the title of respondent to an undivided 4/15 interest in what is called the Narragansett Lode. The complaint is in the simple form alleging ownership of such interest in the plaintiff; that the defendants named claim some -estate or interest adverse to him, and that the claims of defendants are without right.
The defendants American Mining Company, Ltd., H. H. Stackpole, Carl Kleinschmidt, George F. Hale, Alfred W. Hale and Anna Davenport defaulted. Separate answers to the complaint were filed as follows: By the Western Mortgage & Warranty Title Company, denying that plaintiff has any interest in the property, alleging ownership of the whole of said property and that the Western Mortgage & Warranty Title Company and its predecessors in interest had been in the quiet
On July 12, 1912, the above-named parties entered into a stipulation to submit the cause to the court upon the following agreed facts: That in 1892 the title to the property in question stood of record and was in fact vested in Alfred W. Hale (an undivided 7/60), George F. Hale (an undivided 7/60), Matthew Cullen (an undivided 4/15), Samuel H. Stuart (an undivided 2/15), and the American Mining Company, Ltd. (an undivided 11/30); that save as affected by the tax deed hereinafter referred to, the title so remains, except that in or since 1905 the above interests of Alfred W. Hale and George F. Hale became vested in John H. Johns (an undivided 1/24), Mattie F. Curtis (an undivided 1/48), Western Mortgage & Warranty Title Company (an undivided 1/48), and Frank H. Cooney (an undivided 3/20), and that the above interest of Samuel H. Stuart became vested in Lueina S. Wadsworth as his executrix and devisee; that in 1897 the property was assessed to Samuel H. Stuart and S. H. Stackpole for back taxes for 1891, 1892, 1893 and 1894, and such not having been paid, the property was on February 12, 1898, after due and regular notice, offered for sale and a certificate of sale was issued to Silver Bow county for all property offered for sale on February 12, 1898, a list of which, attached to the certificate, included the property in question ; that said property was redeemed from said sale on August 9, 1911, by Beinhold H. Kleinschmidt and whatever interest he thus acquired was before the commencement of this action conveyed to the Western Mortgage & Warranty Title Company; that in 1898 the property was assessed to “American Mining Company et al.,” taxes were levied and became delinquent, and on January 27, 1899, after due and regular notice, it was offered for sale and a certificate of its sale was issued to Lee Davenport; that on January 5, 1902, Lee Davenport filed with the treasurer his affidavit and notice of application for tax deed, and on January 28, 1902, a tax deed to said property was by the treasurer issued and delivered to said Davenport; that .whatever interest said Davenport acquired by virtue of said deed has be
It does not specifically appear when the agreed statement of facts was filed; but on July 23, 1912, Mattie F. Curtis and John H. Johns filed their separate replies to the answer of the Western Mortgage & Warranty Title Company, in effect denying the claim of ownership asserted by it; whereupon the following proceedings were had in court: “This eause coming on this day regularly on argument upon the agreed statement of facts heretofore filed herein, the parties being represented by their respective counsel, * * * it was stipulated and agreed * * * that the answer of the Western Mortgage & Warranty Title Company on file herein should stand as the answer to the complaint in intervention of John H. Johns and to the separate answer of Mattie F. Curtis, and that the replies of John H. Johns and Mattie F. Curtis filed and entered herein on this day should be deemed replies to the said answer of the Western Mortgage & Warranty Title Company; thereupon Massena Bullard, counsel for the Western Mortgage & Warranty Title Company, moved the court for leave to file an amendment to the separate answer of said Western Mortgage & Warranty Title Company, setting up a third affirmative defense which said proposed amendment is in the words and figures as follows, to wit: ‘ Third: For a third defense: That the plaintiff’s cause of action is barred by the provisions of section 2654 of the Revised Codes of Montana of 1907, as amended by Chapter 50 of the Laws of the Eleventh Session of the Legislative Assembly of the State of Montana.’ To the granting of which amendment * * * counsel for adverse parties objected, * * * which objection * * * was by the court sustained, and an exception to the ruling of the court noted on the part of the Western Mortgage & Warranty Title Company. Thereupon the ease was fully argued by counsel for the respective parties and submitted to the court for consideration and decision and the case was by the court taken under advisement.” On September 9, 1912, the action was dismissed as to the defendant Carl Kleinschmidt; testimony was taken as to the defendants who had defaulted,
The principal question involved is the construction and application of section 2654, Revised Codes, as amended by Chapter 50, Session Laws of 1909. Section 2653, Revised. Codes, provides that the matters recited in the certificate of sale must be recited in the tax deed and that such deed, when duly acknowledged or approved, is prima facie evidence of certain things. Section 2654 as amended, provides that such deed, except as against actual fraud, is conclusive evidence of all other proceedings from the assessment by the assessor to the execution of the deed, ‘ ‘ and no action can be maintained to set aside or annul a tax deed, upon any ground whatever, unless the action is commenced within two years from and after the date of issuance of such tax deed; provided, that any existing right of action to set aside or annul any tax deed, heretofore issued, shall be barred unless instituted within two years from and after the passage of this Act.” (Sess. Laws 1909, p. 58.) It is argued by the respondent : (1) That the deed is void upon its face and therefore the above statute has no application; (2) that the sale to Davenport was void because at the time thereof, the property stood unredeemed from a previous sale to Silver Bow county; and (3) that the deed is void for want of jurisdiction in the treas
1. The deed recites that the property was sold for taxes
We cannot seriously consider the proposition that the tax
2. Concerning Exhibit “A,” the theory of respondent is that the property having been sold in 1898 to the county for delinquent taxes, it could not again be sold or exposed for sale until the period of redemption had expired, and therefore the sale in 1899 to Lee Davenport was void. Whether or not this exhibit was inadmissible in consequence of section 2654, we agree with the appellant that it should have been excluded on other
3. Since the deed was not invalid on its face, the question that next arises is whether Exhibits “C” and “D” were
4. It is contended that unless section 2654, Revised Codes,
But we cannot hold that reversible error occurred in refusing the leave to amend. While it is the policy of our law to permit amendments to pleadings in order that litigants may have their causes submitted upon every meritorious consideration that may be open to them (Rev. Codes, secs. 6588, 6589), and while it is the rule to allow, and the exception to deny, amendments (Leggat v. Palmer, 39 Mont. 302, 102 Pac. 327; Flaherty v. Butte Electric Ry. Co., 43 Mont. 141, 115 Pac. 40), yet they
Such other questions as are discussed in the briefs of counsel are merely incidental. What has been written above disposes of the essentials of these appeals and requires that the judgment and order overruling the motion for new trial be affirmed. Ordered accordingly. Affirmed.