32 P.2d 4 | Mont. | 1934
There was never any service of notice of application for tax deed on the estate of Fay C. Hull, deceased, or Veda G. Hull, as administratrix or personally, nor upon any of the minor heirs. This court has repeatedly held in late cases that the requisites of section 2209, Revised Codes 1921, relating to notice, are jurisdictional and failure to comply with them renders the tax deed proceedings and the tax deed based thereon void. (Cullen
v. Western Mortgage Warranty Title Co.,
The fact that the 1927 Act reduced the period of limitation from two years to one year did not render the amendment unconstitutional. (Couch v. Chase,
The contention that the appellants were deprived of property without due process of law has no merit. No property right is here involved. (State ex rel. Souders v. District Court,
In none of the cases cited by appellants is the question of limitations discussed. Referring to this question, the only jurisdiction where the question has been fully worked out is New York state. The Act under consideration (Chap. 448, Laws of 1885) provided: "All such conveyances that have been heretofore executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named after having been recorded for two years * * *, and all outstanding certificates of a tax sale heretofore held by the comptroller that shall have remained in force for two years after the last day allowed by law to redeem from such sale shall, six months after this Act takes effect, be conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land and all notices required by law to be given previous to the expiration of the two years *528 allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of this Act, and all laws directing or requiring the same, or in any manner relating thereto, and all other conveyances or certificates heretofore or hereafter executed or issued by the comptroller, shall be presumptive evidence of the regularity of all the said proceedings and matters hereinbefore recited, and shall be conclusive evidence thereof from and after the expiration of two years from the date of recording such other conveyances or of four years from and after the date of issuing such other certificates."
In Meigs v. Roberts,
Applying the test set forth above to the 1927 Act, it appears that except for the limitation in the statute, plaintiff would have a cause of action to set aside the tax deed, and that a reasonable time is allowed him within which to do so; but that upon his failure so to do within one year, the statute bars his right. Under the holdings in the New York cases there can be no question of the legislature's power to make this title good; there can be no doubt of the intention of the 1927 legislature to exercise its power to that end. This action was brought to quiet title to forty acres of land situated in Glacier county, described as the northeast quarter of the northwest quarter of section 13, township 35 north, range 6 west. The complaint is in the usual form.
Veda G. Hull, and C.E. Frisbee as guardian of the estate of Eugene, Evelyn and Eileen Hull, minors, allege in their answer that they are the owners of the above-described land as heirs of Roy C. Hull, deceased. They allege that plaintiff's claim to ownership is based upon a tax deed which, they allege, is void for several reasons. Plaintiff by reply pleads that defendants are barred from asserting the invalidity of the tax deed because of Chapter 85, Laws of 1927.
It appears from the record, either by admissions in the pleadings or by uncontradicted evidence, that the lands described in the complaint, together with 160 acres adjoining, were patented to Roy C. Hull on April 2, 1917. Roy C. Hull executed a mortgage to the Farmers' State Bank of Cut Bank, covering the 160 acres but not the 40 acres referred to in *530 the complaint. The mortgage was foreclosed and a sheriff's deed covering the 160 acres was executed to G.M. Robertson, receiver of the bank, on December 6, 1926. Roy C. Hull died on July 14, 1925, and Veda G. Hull was appointed administratrix of his estate on August 5, 1925. In 1919, taxes on the entire 200 acres being delinquent, the property was advertised for sale in January, 1920, and struck off to Glacier county. On September 1, 1927, a tax deed issued to Glacier county. On May 7, 1931, the county executed a quitclaim deed to plaintiff.
None of the answering defendants, nor Veda G. Hull, as administratrix, had notice of any of the proceedings resulting in the tax deed, and none of them had notice that a tax deed had been applied for. The notice of application for tax deed described the entire 200 acres as one tract, notwithstanding ownership had been segregated, and the amount stated in the notice as necessary to redeem the 40 acres here involved was not separately stated. The notice stated that the amount required to redeem the land was $742.48, whereas, so far as the 40-acre tract was concerned, the correct amount necessary to redeem was shown to be $88.26. The notice of application for the deed did not set out the names of the respective owners of the property, and it was not served upon any of the answering defendants who are heirs of Roy C. Hull. The notice was posted somewhere on the 200-acre tract, but whether on the 40-acre tract here involved does not appear. The only notice served was one served upon the owners of the 160 acres not here involved. Defendants showed their readiness, willingness and ability to pay all taxes, interest, and penalty for the years since and including 1919, in case the tax deed be set aside.
The court found for plaintiff and entered a decree quieting title in him. Defendants appealed from the judgment.
The determinative question is whether the defendants are barred from asserting any interest in the property because of Chapter 85, Laws of 1927. Section 1 of the chapter provides in part: "Such deed, duly acknowledged or proved is (except *531 as against fraud) conclusive evidence of all other proceedings from the assessment by the assessor up to the execution of the deed, both inclusive, and no action can be maintained to set aside or annul a tax deed or to assert a title hostile to a tax deed upon any ground whatever, whether on the ground that said deed, or any prior proceeding, was irregular or void, other than that the deed was void because no taxes were delinquent on said lands, or because redemption had been made from said tax sale, unless the action is commenced within one year from and after the date of the issuance of said tax deed."
Section 2209, Revised Codes 1921, required the purchaser of[1, 2] property sold for delinquent taxes, thirty days previous to the expiration of the time for redemption, or thirty days before he applies for a deed, to serve upon the owner of the property purchased, if known, a written notice showing, among other things, the time when the right of redemption will expire or when the purchaser will apply for a deed, and provides that the owner has the right of redemption indefinitely until such notice has been given and the deed applied for.
If the property has been struck off to the county, as here, the same notice must be given as in the case of an individual purchaser. (Harrington v. McLean,
The deed in question here recites that the grantee had given the necessary notice of application for the deed, as required by law; hence the deed, so far as this point is concerned, is not void on its face, but is shown to be void by reference to the affidavit filed pursuant to section 2212, which shows on its face *532 that the notice was not served upon the owners of the forty acres in question here. Therefore we are brought to the question whether Chapter 85, supra, bars defendants from now asserting that the deed was void for want of such service.
Chapter 85, though it attempts to make the deed conclusive[3, 4] evidence of all proceedings from the assessment by the assessor up to the execution of the deed (except as against fraud), does not prevent the true owner from showing a want of notice in the tax proceedings. (Marx v. Hanthorn,
Prior statutes very similar to Chapter 85 have been held by this court, in line with the holding of other courts, not to have application to a deed void on its face. (Horsky v. McKennan,
The adjudicated cases are not in harmony as to the effect of a short statute of limitations on a tax deed shown to be void on jurisdictional grounds. The courts of New York have held that such a statute bars an action for jurisdictional defects, as well as for irregularities. (Meigs v. Roberts,
Under a statute such as ours, where the question of possession of the property covered by the tax deed is not provided for, the better reasoned cases hold that the issuance of a tax deed void for want of notice of application for the deed, does not start the running of the statute of limitations.
In Cain v. Ehrler,
In the case of Lind v. Stubblefield,
Cases reaching the same result, where there were jurisdictional defects rendering the deed void, are: Baker v.Rogers,
In the New York cases cited, supra, the facts were materially different from those here. Under the statutes and the facts presented in those cases the original owner had notice when the statute of limitations would begin to run against him. The statute in those cases began to run either upon the recording of the deed or the taking possession by the purchaser, or both (Meigs v. Roberts, supra; Halsted v. Silberstein, supra;Dunkum v. Maceck Bldg. Corp., supra; Doud v. HuntingtonHebrew Congregation, supra), or at a specified time after "the day of the sale" (Mabie v. Fuller, supra).
We recognize the force of plaintiff's argument that the legislative intent and policy under Chapter 85 were to encourage the placing of property back on the tax rolls. This policy is adequately preserved by that chapter in requiring the original owner to pay all taxes, interest and penalty and to make restitution for all improvements made on the property, as a condition to the right to set aside a tax deed. This policy can furnish no justification for cutting off the right of the original owner to attack the tax deed when there was want of notice to him of the application for the deed. The necessity of this notice is still preserved by legislative amendments of section 2209 (Chap. 156, Laws of 1929, Chap. 190, Laws of 1933). The statute, so far as it attempts to bar the owner's *537 right to attack a deed issued without the notice of application therefor amounts to a taking of his property without due process of law. Under such a situation he has no notice as to when the statute begins to run against him. In such a case the statute is no more a bar than in a case such as that involved in the HorskyCase where the deed was void on its face. Where the original owner has had no notice of application for the deed, the statute must make some provision whereby he is given notice, actual or constructive, that the statute is running against him, before the deed can be made conclusive against him within a specified time after its issuance.
The judgment appealed from is reversed and the cause remanded, with directions to enter judgment quieting title in defendants and for their costs, upon payment by them of all taxes, penalty and interest.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, STEWART and ANDERSON concur.
Rehearing denied May 2, 1934.