*1 SANBORN, Appellant, v. LEWIS AND CLARK COUNTY Respondents. al.,
et
(No. 8,082.) (Submitted Behearing 1941. June Decided October 1941. denied
January 1942.) (2d)
[120 567.]
(1) *3 Davidson, Appellant, Mr. Charles for submitted a brief Counsel, argued Browning, he and Mr. William F. the cause orally.
Mr. Harold K. Floyd Anderson and Mr. Small, O. for Re spondents, brief; submitted a argued Mr. Small orally. the cause
MR. JUSTICE ANDERSON opinion delivered the court.
This an appeal .judgment from a for the defendants in an action to title to real complaint estate. The is in the usual form, short alleging ownership by plaintiff and unfounded claim by of title defendants, with prayer adju- dication quieting plaintiff against the defendants. There are three defendants, Lewis and Clark county, Alexander B. Johnstone and Johnstone, Mrs. his wife. There is no joinder of unknown defendants. Lewis and dark de- faulted and Johnstone By alone his wife made answer. they such answer plaintiff’s denied the claim of title and defendants, admitted that Lewis and Clark county and themselves, claim title or property interest the real ques- tion, pray plaintiff that the nothing by take complaint his they costs, general recover and for relief.
Upon case, the trial of the which the court before jury, without plaintiff proof offered title and to show unfounded claim of title defendants offered in evidence premises a tax running deed of the Lewis Clark county, together an with abstract of the pro- tax title ceedings showing for the irregularities therein rendering tax deed invalid. interest in property claimed the defendant Johnstone and his wife was under purchase property contract for the from Lewis and county, being Clark this contract also offered in evidence plaintiff. only claim of title over which there is *4 controversy resting is that on the tax deed. objected regard
The defendants to the offered in evidence so ground question validity on the to the tax deed that the proceedings of the tax title and the tax deed issue were not an an ease; in of such evidence constituted the that the offer attempt upon deed, the at a collateral attack tax the contention questioned may being validity that the of a tax deed be not the allegation title under a in an action to mere deed, claiming it, assert an holder of tax or those the may questioned title; unfounded claim of that a tax deed only for its removal as a direct attack cloud the irregularities wherein infirmities and and the and defects application tax sale tax must be the or deed specifically pointed out, procedure pur- and that the for such pose Codes, should section be under Revised not was re- under section Revised Codes. The evidence objection competency its ceived without as to but over objection relating immaterial, the it was irrelevant and not at issue the case. applying obtaining There are two for and methods method, one, ordinary state, statutory tax deed the (section Codes) purchaser Revised in which the tax application deed, makes after treasurer for giving application notice of the to the land owner and others proceeding interested the title. this method the wholly except oppor- parte, giving give ex of notice tunity redemption, part in the for courts have no proceeding. method, (Sees. 2215.1-2215.8), The other an action brought in obtain the district court to being prosecuted respects the action commenced ordinary judgment ordering action same civil with plaintiff. The holder of the tax sale issuance of tax deed to the employ. In option which method he will certificate application tax deed was made the instant case ordinary statutory county treasurer under the method by court action. not respect proof
From offered and received following trial of the case the defects deed proceedings appear and irregularities in the tax title *5 6 plaintiff
which the rests his contention that deed is the tax invalid:
(1) says The tax sale certificate, July 24, that 1931, dated 22nd, sale was held on July 1931, of and the notice application tax itself, for as tax deed well that 22nd, sale was held on January 1931,.
(2) delinquent year tax sale The was for taxes for the 1930 application and the notice of which was deed 1st, dated November delinquent showed taxes includes the amount thereof the statement of the amount required paid delinquent to be order redeem, taxes are likewise application shown the notice of tax deed part required paid of the amount order to redeem.
(3) application The notice of for tax is Novem- deed dated 1, 1935, ber and states applied that the deed will be for on 31, 1935. December proof
(4) only application service of the notice county for tax is an deputy deed unsworn statement clerk and recorder that it was served November report and the abstractor’s was mailed to that notice Sanborn, Campbell Falls, Bruce W. CLIT. & Sons of Great c/o registry receipt Montana, showing return that notice by George Campbell Falls, H. so mailed was received at Great Montana, was on November 1935. It shown tes- by oral tim.ony was a nonresident that Sanborn of the State and Campbell C. H. & his agents Sons were within the State. plaintiff, hearing cause, order was on an to show deposit required $1,213.41 protect pur- to make a improvements paid chaser for and cost taxes made expenditures protection premises prop- for the of the period possession as re- erty during defendant Question quired by 2214, Revised Codes. raised section up included of certain items to make to the correctness becomes material in dis- sum, of which the determination prevails. deposit plaintiff if position entered and a decree found for the defendants The court B. Johnstone adjudging defendant Alexander and entitled possession premises equitable owner in claiming and those possession thereof, and property right, title interest in the under him have nor no finding the court question. The decree based on Lewis and that the defendant Clark be attacked face which could not valid on deed its
by irregularities in tax .showing defects and the tax sale and proceedings, Alexander B. John- title and that the defendant premises possession the under valid and is in of a sub- stone purchase property from the contract the sisting county. appeal are, first, whether questions determinative this
The of irregularity validity dependent upon of deed as proceedings, may inquired of be into the action the tax title brought quiet title, second, be, as if and, may to it whether are irregularities proceedings defects and in the title such as render deed invalid. provided by distinction in as
The the remedies the two sec pointed Codes, 9479, of the Revised 8733 and tions out 518, Co., Review 71 230 Pac. the case Slette v. Pub. Mont. 580, 581, “Proceedings where the court under this section [9479] are not aimed at a particular instrument, but pretensions claiming adversely,” at the of individuals whereas Lyman Co., 8733, section as stated in Poulos v. Bros. 598, 208 particular 63 Mont. “It is a directed to dangerous plaintiff’s rights, instrument which is and the object the action is to have the instrument canceled and it removed.” cloud cast may
The maintained under section spoken that under section 8733 have been of inter- generally changeably textwriters as of court namely, clearing of purpose, like nature and like ultimate (Heinecke 167; Scott, (2d) 26 Pac. Mont. title.
5 R. L. 643.) scope C. procedure distinction is in inquiry. remedy narrower, under section 8733 is lim- against ited a particular instrument, complaint and the a proceeding point specifically thereunder must out grounds invalidity relied to establish its and menace its to the title. permits inquiry Section 9479 into whole title property question. adversely persons claiming All plaintiff to the may be cited in and claims adverse of title may inquired of all kinds into, being the purpose to enable plaintiff against title as unfounded claims remedy all provided nature. The is more ex- easy peditious chancery clearing mode of than under the old system, enlarging power court to determine manner and number of adverse claims to land and (5 643.) quiet title thereto. R. C. L. our Under section 9479 given unusually powers broad in such a proceed- ing, including power to remove from the title and clouds to cancel instruments of title as incidental be neces- sary quieting main the title.
Here, controversy while the tax deed is at the basis of the which has arisen, plaintiff the relief which the seeks is not alone cancellation of the tax deed. What wants *7 silencing is a decree defendants claims their pretensions selecting remedy plaintiff title. might well have felt that cancellation tax deed might complete alone not have afforded relief. There were defendants, holding a tax several deed and John- possession claiming the premises stone and wife adversely right possession occupancy plain- to to the only possible a proceeding tiff. wherein all claims It inquired of these defendants could be into that of title several against might fully quieted plaintiff’s be all these title proceed The chose to under section 9479 defendants. complete remedy. affording full and the more language enough clearly 9479is broad to of section show
9 legislative intent proceeding provided for, that in the manner subject of adverse claims of adjudica- title shall be tion. provides And section 9487 upon service of summons on all the defendants “the in which such action tried jurisdiction shall complete adjudication have to make a the title to the lands named in complaint, and the title sought to which is quieted, including jurisdiction to be direct the cancellation of instruments constituting clouds such title.”
While title claims of all kinds considered, judg- a affecting
ment the title rendered a court of com- petent jurisdiction cannot be proceeding. disturbed such Assertion of title judgment as established such cannot said to be an unfounded controversy already claim. The there judicial inquiry. had And so deeds or other instruments affecting title, pursuant executed to the order of such judgment, against likewise must stand as any such attack. (Thompson Chicago, etc., v. Co., Railroad 78 Mont. 253 Pac. 313; v. Skylstead, Price 1059; Mont. v. Burke Inter-State, etc., Ass’n., Mont. 64 Pac. 87 Am. St. Rep. 416.) against To obtain relief judgment, a a direct proceeding provided by law for the must be resorted subject to. It is not attempt to collateral attack. An to set judgment aside a or pursuant title instruments executed to the judgment order proceeding of such in a quiet title is col- judgment lateral attack governed by and is the rule against (Thompson Chicago, collateral attack. etc., Railroad Co., supra.) against here whether the rule collateral upon judgments applies
attack contention deeds. The respondents validity is that it does and therefore questioned of the tax cannot be proceeding deed in this regarding a collateral attack. against developed The rule attack has in the law collateral judgments application law and its in the of tax arises titles *8 10 delinquent property is sold for
where assessments are made and under coiirt judicial nature proceedings taxes in of a 1380; v. Taxation, Ed., 4th Munroe (Cooley sec. sanction. Bonougli, 111 396; Brown v. 309, 87 N. W. Winegar, 128 Mich. 541; Gillis, 45 v. 490; 232 Jones v. Cal. State Tex. S. W. Milburn, Cir., Indiana, etc., 8 228; Co. v. Sargent, App. 12 Mo. applica authority for the 531.) there is some Fed. While en handled proceedings are rule where tax tion of the title in the cases so tirely by officers, we administrative find have considered been applying the rule the judicial proceedings because of being nature delays formal notice, and other for requirements the law taxpayer, v. safeguards Shannon intended as ities 407, 87 Duffy Peneguy, 148 La. v. Lane, 33 La. Ann. 25. So. Lloyd, 90 Mont.
This in the case of Richardson court resulting by our “A 254, 256, has said that though statutory same in this state method effect has and, court, judgment or decree of accomplished through the subject here, collateral face, as is not regular on its when rely this statement respondents attack.” controlling in instant in this state and as as the law case. quiet There was not an action to title. Richardson case had promissory note which brought to recover on
suit was The real estate by mortgage on real secured estate. been tax deed and so gone and had been sold for taxes sought to establish security gone. The defendants mortgage subject deed, leaving the title still invalidity of main- plaintiff from prevent the would mortgage, which mortgage long as note alone so taining his action on the a collateral was held to be intact. This security remained maintained. The not which could upon the tax deed attack entirely from that an different manner question there arose main wholly title, and was collateral an action *9 plaintiff was question in action which whether the represented recover the note. What entitled to on debt deed, valid on in that was that a tax the court decided case until face, as an transfer of title its must be taken effective invalidity proceeding appropriate in a its has been established in purpose. law difference for that In view the clear the character of the attack and also because of the intent, pointed out, language later legislative will applying in an decision cannot stand as action to title.
The distinction in the attack made character of when it arises in an action has for its which clearing title, it in actions, where arises other pointed in Dawson, out the case of Hickman v. 33 La. Ann. 438. plaintiff brought that case the a suit to establish his title certain estate, alleging general real terms title in himself illegal possession and claim of title De defendants. they fendants filed an answer generally wherein denied plaintiff’s up claim of title and then property title to the set judge themselves under taxa deed. The trial sustained objection irregularities defendant’s to evidence of proceedings as a collateral attack deed. appellate court held this was arose error. essentially vray the same as in the case we have here for con objection sideration. The the evidence excluded was: plaintiffs “Because had alleged irregularities, not or nullities sought to be established in the tax-deed, and because competent it is collaterally any not to consider such nullities ’’ patent not on the face of the tax-deed. in disposing The court question says: “We have carefully examined the numerous authorities which judge] quotes he support conclusion, of his [district and have read with jurisprudence interest his review able validity tax-sales, collaterally. when attacked
“But the authorities predicated upon which he are cites cases
12 validity jvas where the of the tax-deed attacked third person, seizing property debtor, regard without expropriation property debtor’s under a tax-sale. eases, In such purchaser when sale, under such a appeared his tax-deed, properly exhibited it was held, rule, and it now the settled that such sale not be could collaterally defect, attacked latent or deed unless the itself nullity discloses on its face the absolute of the sale. (Coco Thienman, 237; v. 25 [236], Ann. Lannes V. [La.] [Work Bank, ingmen’s] 112; Jurey Allison, Ann. & Oíllis [La.] [1234], 1235; Ann. Imboden, Renshaw & Cammack v. [La.] 661.) Ann. [La.] “A applies different rule petitory in a action where *10 alleges in himself, title and in which defendant to him resist successfully must show a better in himself. title
“In case, such a up all matters of defense set the answer every fact, must be open objection considered as to of law and * * * objections as if specially pleaded. such been had applying present “In case rule to the lose we do not provision sight of the in the requiring Constitution of justice prima tax deeds as courts receive facie evidence of a sale. vadid given rule,
“We have the maintaining full effect to this up answer, set prima valid, sale the we facie but plaintiff weapons petitory must allow to in his action all the by attack which are afforded to him law. opinion “In our Judge District excluding erred testimony plaintiffs, showing offered for the nullity adversary’s of their title; we shall remand ground.” the case that County, Moores Clackamas Or. bar,
a tax case in essentials the at same as case speaks court of remedies as available to choice says: plaintiff and undoubtedly that- the many it is true
“Now, instances accomplished adoption may be object obtained plaintiff up sets the facts In one case the remedy. either invalidity, while in other he and its showing the cloud and nature upon up to set the character the defendant calls legal its adjudicated it claim, of his quieted. thereby plaintiff’s title determined, and have the effect procedure mode of preferred the latter The has present instance.” remedies so near of kin that And further: “The are adopt. pro- If he wishes to plaintiff has his choice which to complaint disclose cloud, as for a removal of a his must ceed thereof, the existence a state of facts will reveal authorities; de- but, proceeds if under the statute to he complaint must a cause on claim, an adverse show termine must claim or theory, and the disclose his that defendant interest, and, upon plaintiff’s if in a it consists technical cloud begin go title, why see no reason should out of court we he relief, anew, right when it shown he has clear is subject-matter. equity jurisdiction has event, plain- same in either which relief quieted. title be cleared of the incumbrance or tiff’s simply restrain the defendant from decree in this case should any claim, under and virtue right, assertion of or title which the certificates of sale and they "Wedo not desire be understood as en- are founded. if right, any, from its joining asserting it *11 against premises and collect it.” valid these assess a tax reasoning is foregoing In eases both of the the of the appear logical, are and the conclusions reached and sound litigation as in state. While applicable us to tax title this invalidating spoken irregularities relied on tax deed are as occurring proceedings sale rather than in the in the as tax is deed, principle of law discussed application for tax the same.
In case Western, etc., of Cullen v. Co., 513, Title 47 Mont. 307, there while in a some- arose what different manner and is exactly not as same it here arises, the court there there no essential difference purpose litigation ultimate whether it be carried provisions under section (then Revised Codes 1907), Sec. 8733, (then Rev. Codes or section 6115), Sec. and that when action is commenced under section 9479 and claim deed, the title of the defendant rests on a tax the action should be as an considered attack deed. While finally the case there was submitted on an agreed might such statement facts change result in a action, the form of speaks the court quiet of the action to brought there “designing accomplish title precisely thing” brought the same as if set “to aside or annul a tax deed,” pointed out as one of the vital matters of disposition consideration in the of the case. scope addition the broad of inquiry provided
section its evident covering all adverse upon any title resting adjudication, claims not former regardless may given the classification that the resultant proceeding attack, as a or a collateral direct we believe that legislature clearly validity evinced intent that the of a inquired tax deed quiet into an action to title. language Aside from the broad of section 9479 tax title statutes refer to themselves actions to title as modes of inquiry validity into the of tax deeds specially provide things certain that must be such done with respect to tax deeds. provided
Thus in any section it action “brought any quiet title, to set aside or annul or right person purchaser,” or to of such determine the attack- ing proceeding application a tax deed must deposit purchaser sums with certain protection purchaser, provides treasurer as to the tax
15 owner former such true owner “the of [the further that purchas- against said [quieted?] as quiet shall not be of the land] in said action entered shall be successors, and decree er or his against his successor purchaser or quieting of said the title Clearly money made. deposit is not if such true owner” said may be a tax title thought language carries protective as this quiet title inasmuch in an action to attacked proceeding. followed in made to be been provision has 2214 between distinguished in section has legislature and an action any annul tax deed aside or an action to set plaintiff has quiet clearly indicating that title,' to can be in remedy. only distinction there choice scope, in its remedy case, aside from the difference in such remedy, under section procedure. In the one is the matter general plaintiff 9479, general allegation title in the allegation claim title the defendant of unfounded Hardy, (Teisinger v. required state a cause of action to (2d) Co., supra; 5 v. 9, 219; 91 Slette Review Pub. Mont. Pac. Bowery Co., 298, 519; Pollock Merk v. Min. 31 Mont. 78 Ely 768; v. Davenport, 452, Min. 31 78 Pac. & Mill. Co. Mont. 32 9 Mexico,etc., Co., Sup. Ct. New Railroad U. S. necessary point to 688) Ed. section 8733 it is L. while under upon a specific grounds upon in the attack out the relied specific Certainly legislature shown instrument. where the be remedy shall have choice of that the intention that him, there be no most convenient to could the same relief giving right under section embody required might obtained under he should requirements under procedural proceeding into the to con- from 9479. This would lead that under 8733 different is intended difficulty procedure which the statute fusion referring the ac- section in addition avoid. And attack procedure the modes title as one of tion to purchaser sale deed, that when at the upon a tax quiet title brings an action to in interest or his successor procedure specified shall be such as why in sections 9479 to 9488. There can good be no reason procedure should be made more cumbersome when *13 validity brought question of the tax deed is by in former the owner of the land.
Respondents contend in mentioning both remedies as possibly resorted to in an upon deeds, attack legislature tax the had mind being upon the one as used in attack a tax deed upon face, valid its and the attack other in tax deed void its face. legislature We do not believe the had propriety mind such of distinction remedies. To read particular purpose part such into this of the Act would not harmony purpose be in with the evident of as whole the Act already pointed as out.
We the of validity hold that a tax deed which has been by county by application issued the or- treasurer under the statutory dinary method and without action be questioned and determined in action an title under invalidity section and whether its appears face on the by of the deed or must shown reference to the tax title proceedings leading up question may issuance; and the its by plaintiff raised complaint, under the short form of alleging general plaintiff terms title in the and unfounded by of defendant; claim plaintiff, title and that the complaint, such a is entitled irregular- to introduce evidence of ities, proceedings defects and omissions in the tax title affect- ing validity deed, itself, of as well the deed and all by which of should in determining be considered the court validity the deed. of question validity
The of the tax therefore deed was properly case, an made issue and the evidence offered of title was material to issue, excluding the court erred in it from considera- refusing tion and in validity consider the tax deed. question then irregularities
The arises whether the defects and proceeding, omissions as shown offered, are evidence to render the tax deed invalid. statutory applying ordinary a tax deed under the method, importance the matter giving is the notice application. of the notice is to warn land owner, interested, and others impending issue of' right redemption deed and the termination of the giving jurisdictional coincident therewith. The of the notice requirement and unless respect of the law in notice to such complied proven with and filed with the affidavit treasurer, the tax deed should not The statute, issue. section provides. Codes, Revised so requirement to notice is set forth in Re- section vised Codes. The holder certificate, must, of the tax sale at sixty days least applies before he written for the serve *14 upon notice known, the owner of the if property and person occupying the property stating the if is occupied, it property that the delinquent giving has been sold for taxes, sale, property the date of the sold, amount of for the amount sold, which it due, was right the amount the when time the of redemption will expire, purchaser or when apply the will deed. The notice must also of served the holder any mortgage registered by record, by unreleased of mail or publication appear if address in county the does not the re- unoccupied corder’s records. property, ease of the notice by registered must be mail residing sent known owner county. known, in or outside of the If the address is not the published. publication notice must be of the notice must newspaper published be for two in in the successive weeks sixty county, publication and first the must be made at least days applied before deed is for. Proof of the service notice, affidavit, given, supported in manner by whatever immediately must be filed with the clerk recorder. county and From respecting examination the evidence the notice
application deed, already been set forth for the tax as it has clearly requirement herein, appears it of the law that county complied notice was with. statement not all, to, proof at recorder, being not sworn is no clerk nothing considered, shows even if the statement were to be it sixty- 16th, until November short of the to have been done far proof mailing notice land owner is day period. The to the mailed, when insufficient. It does not show the notice only throwing any light being thereon of its date date by 11, receipt agent in- an of the owner November sixty-day dicating mailing was actual short of the that the period. in the service of The defects and deficiencies requirement many, single in are fact not a item of notice so complied with, we notice was have no of the law as to required hesitancy saying notice not that the law was not have been issued given. Therefore the tax deed should deed is void. treasurer and the Respondents Schlinski, County Glacier cite case opinion
Mont. 300 Pac. where its the court point attacking necessary a tax deed it out “in clearly terms, specifically, apt particular defects There the pleader on which relies to defeat deed.” he attack was made defendant in his answer and wherein plaintiff’s referred to deed as basis of the claim in point pleading out of title and undertook validity deed because of defects in the sale procedure applying allegations for the tax and the pleading appears there to us as were held insufficient. The ap attack under section 8733. more the nature of direct *15 conception law, But then have been the of the whatever quoted requirement pleading, as above we hold as to that the brought case, actions restricted to County from the Glacier litigant, Codes, and wherein under section Revised in the tax title pleading show in defect undertakes to proceedings void. which render the deed regardless question Respondents of the contend also that hearing admissibility evidence, after court, of the allega- case, plaintiff’s has held the offered in the evidence invalidity in tax title tions to defects valid; that tax deed is of the deed without merit and findings court are con and that these of the district binding upon There is merit in clusive and are this court. no question by the The controversial decided that contention. purely lower was of law. There was no dis application pute in facts. was in of the law to The error the facts. -in the validating
There is no Act which the defects cures Chap Respondent in service of the notice case. cites only mistakes ter Laws of 1937. That Act relates stating required paid in the notice the amount due and to be order to redeem. Here are defects and omissions there notice, complete the service of the to show a failure requirements respect, law in that which follow application proceedings clearly render the tax deed insufficient regard without to the statement the notice of amount required to redeem. deposit required
As to the at commence- ment of the action: payments $392
The item of made defendant Johnstone purchase plaintiff agrees to the on the land contract allowed, this will stand. should paid, plaintiff item should be $109.55 for taxes in
reduced to one-fifth thereof. The contention only purchase price asmuch as one-fifth under the paid, land only contract had been the one-fifth interest in the subject was taxation in its entirety and not land done; only that therefore one-fifth of the amount paid required imposed legal was a tax and which could be Codes, says deposit. Section Revised taxes, deposit cover taxes shall be “the amount of all *16 penalties interest and which would prop- have accrued if said erty had been regularly legally and assessed and taxed as the property of said true owner and delinquent sold for taxes was about to be redeemed.”
Section 2208.1, Revised Codes, acquired by that lands county delinquent (cid:127)the at shall, tax sales within six months thereafter, disposed public of at sale, disposed and if not n ofat such sale, may thereafter be sold public at either or private sale terms, and on exchanged or for other lands or leased out. And .section 2208.2, Revised Codes, provides that moneys .all received from leasing lands, sale or any any -or of lands received in exchange, paid shall be into the treasury .county and shall be credited to each fund the same would have moneys been credited had the so been received paid upon as taxes lands, any said surplus belong county. .to the purpose being that lands removed from the lax rolls the county acquiring shall permitted not be lie .to dormant but shall be sold produce or leased to the de- linquent and, by taxes sale, if possible, on the tax restored provides rolls. Section 2208.1 further as follows: “If a sale is made terms, the chairman of the board of n county commissioners shall execute a contract behalf of county, payment purchase price, the full together with all taxes, interest the chairman of the board county .of commissioners shall execute a deed to purchaser, assignee conveying (cid:127)or his the title county in and to the lands so sold. Monday
“On the first following in March the execution of .such contract, the subject lands shall be to taxation in the purchaser, name of the or his assignee, and in event the paid, taxes not are and the same become delinquent, said shall payments contract stand cancelled and all theretofore taken, made shall treated regarded as rent for said property.” .already purpose
As .stated, the statute is produce purchaser from the from the land. The tax revenue paid taxes as well a deed until he does not receive having been made purchase price. Also the sale rolls follow- county, land is on the restored to specially pro- Monday ing of March. The real first rolls on the tax viding Act for restoration of the land in the been to when on contract must have remove sold *17 legal being title still retained in might that arise because of the purchase paid and title county. price been in full the Had the im- county, from the lands would by transferred deed the general mediately the tax rolls the have been restored to under respect property to liable for taxation. statute with from, Under land the statute referred to and cited the subject although became to taxation when the sold purchase price paid; purchaser full was had not been the required pay contract, such taxes his also before to or lose and required pay obtaining his tax was all taxes that he to Codes, against were lien the land. Section Eevised sale, provides redemption the property of that from redemptioner pay, only must for which not amount subsequent sale, land was at the tax also all taxes sold but paid by purchaser assignee, at sale with interest. such or
It is $109.55, clear that the whole the item of which covers of land, following purchase taxes levied from county, properly deposit required, was all of included required pay which the former owner of the land would be if he to redeem from were the tax sale.
The additional sum of the court in its order $711.86 expended is “the said paid amount and reasonably of years B. Johnstone from Alexander after three the date making im- sale, preserving property said tax said and in provements thereon Johnstone while the said Alexander B. had possession larger sum of been thereof.” much $2,698.75 many items Johnstone, up was claimed made of expenditure money of of labor. Considerable evidence
went in from both sides these leaving various items much dispute. it in
Johnstone, at time sale, possession of the tax inwas property a lease Sanborn, from and has remained in possession throughout period the entire sale. since the tax required Under his lease he was premises look after the improvements, appellant make certain contends be- relation, cause of tenant when the tax is declared deed void, improvements Johnstone can no claim make money expended in protection property, for that contended, required him under the lease. it is Also during premises period the rental value of the occupancy since issuance deed should be deduct- ed from the amount allowed. improvements money expended
There were made and other required by than such as lease, and a amount sufficient of it after the up issuance the tax deed , to make the amount All presented allowed. these matters court,, were trial sum $711.86 was determined as reasonable presented. Respondents, under the facts and circumstances *18 proof totaling larger of items $2,698.75 made sum of as. findings
claimed. The not show do how court arrived $711.86, sum it at the lesser eannot be there and determined improvements required lease, from whether or premises, rental value of the were taken account. There into request specific findings showing was no for allowances and questions review, deductions made so as to reserve those for record, in nothing upon find made,, we the issues as justify disturbing finding which would this in court of' (Secs. upon point the trial court this the case. 9369 Joyce 9370, Codes; McDonald, v. 163, Rev. Mont. 149 Pac. 953.) deposit requiring of the district
The order court $1,213.41 will stand. deposit judgment by is reversed and of the made is action ordered at the commencement paid respondents.
he to the Erickson, and Mr. Justice Mr. Chief Justice Johnson n concur. dissenting part:
Mr. Justice Angstman, petition rehearing given have further consideration for I On with we should do persuaded case and I am that what this that, ground whether it it back for a new on the send trial collateral, must pleadings is direct or advise the the attack setting party defects relied particular (cid:127)adverse County Schlinski, Mont- tax title. aside the Glacier 300 Pac. we said: “One who attacks a tax deed pleading clearly specifically, point must his out invalid relies.” apt terms, particular on which (cid:127)and defects he title. seems to the universal rule actions to This bad, (61 33.) good C. note Whether the rule is or J. state, by pronounced it as the rule in this when right rely upon it. litigants and their counsel have no that there Here there was intimation the pleading^ so, or, what title, if would be an attack Johnstone .ground attack be based. Here defendant would of source of in his answer not set forth the nature his did required him motion have to do so title. should Plaintiff respect. certain more definite and in that to make the answer reply, 56.) should, (5.1 Plaintiff then C. note J. particular defects in the tax have advised defendant anticipated upon by him; plaintiff might have or relied deed complaint. its defects in his pointed claim out (cid:127)defendant’s trial after remanded for new I should be think cause pleadings pointing out *19 appropriate proper are raised issues upon by plaintiff. relied in the tax deed the defects deposit On I with agree amount of petition rehearing. modification on made Justice Morris: Mr. Angstman.
I concur in the views of Mr. Justice CO., HOLDING v. NORTHWEST- Appellant, WESTERN Respondent. CO., ERN LAND & LOAN (No. 8,123.) January May 27, (Submitted 1941. 1941. Decided Resubmitted Octo Opinion Behearing 1941.) 1941. filed ber December (2d)
[120 557.]