Lowery v. Garfield County

• Decision Date: 13 January 1949
• Docket Number: 8872.
• Citation: 208 P.2d 478,122 Mont. 571
• Parties: LOWERY v. GARFIELD COUNTY et al.
• Court: Montana Supreme Court

208 P.2d 478

122 Mont. 571

LOWERY v. GARFIELD COUNTY et al.

No. 8872.

Supreme Court of Montana

January 13, 1949

Rehearing Denied July 18, 1949.

Appeal from District Court, Sixteenth Judicial District, Garfield County; S.D. McKinnon, Judge.

Action by Mit Lowery against Garfield County, and Carl Harbaugh to quiet title. From a judgment for defendants the plaintiff appeals.

Judgment reversed, and cause remanded with instructions.

W. B. Leavitt, Miles City, argued orally, for appellant.

Robert E. Purcell, County Atty. for Garfield County, Jordan, P. F Leonard, Miles City, for respondent Carl Harbaugh.

F. F Haynes, Forsyth, argued orally.

Ralph J. Anderson, Helena, amicus curiae.

F. S. P. FOSS, District Judge sitting in place of Mr. Justice BOTTOMLY, disqualified.

This is an appeal by plaintiff Mit Lowery from a decree quieting title in the defendant Carl Harbaugh to certain real property situate in the defendant Garfield county. The decree adjudges void a tax deed issued to the defendant county and declares plaintiff estopped by the provisions of Chapter 100, Laws of 1943, from maintaining this action.

The complaint, filed April 29, 1946, alleges that plaintiff is the owner of the property; that defendants claim title thereto; that their claims are unfounded and prays for decree quieting title in plaintiff against the two named defendants there being no joinder of unknown defendants.

Garfield county answered, disclaiming any interest in the property alleging that all its interest had been conveyed by quit claim deed to defendant Harbaugh prior to the commencement of this action and denying plaintiff's claimed ownership.

As an affirmative defense the county alleges: That on March 10, 1939, it acquired title to the property by tax deed executed and delivered by the Garfield county treasurer for delinquent taxes regularly assessed and sold; that application for tax deed was regularly made and notice of such application regularly given as provided by law; that no redemption from the tax deed was made; that the tax deed was recorded and possession taken forthwith; and that the sale was at public auction to the defendant Harbaugh, subsequent to the recording of the deed and the taking possession of the lands. The county further pleads that plaintiff is estopped and barred from maintaining the action by reason of the provisions of Chapter 100, Laws of 1943.

By separate answer the defendant Harbaugh denied plaintiff's claimed ownership and by way of cross complaint alleges the property was duly and regularly assessed; that it sold for delinquent taxes; that it was purchased by the county and that certificates of tax sale were issued therefor; that no redemption was made; that the county made application for tax deed in the manner required by law; that a tax deed was regularly issued to the county and recorded in the office of the county clerk and recorder; that the county took possession and thereafter duly sold the property to defendant Harbaugh; that since the issuance of tax deed to it the defendant county and the defendant Harbaugh have been in exclusive, continual and uninterrupted possession of the property and that plaintiff is estopped from asserting title to the real estate involved by reason of Chapter 100, Laws of 1943. Defendant Harbaugh's prayer is for a decree quieting title in him.

In his reply to the separate answer of the defendant county, plaintiff admits the regularity of the assessment for taxes, their delinquency; the sale to Garfield county and that the county made application for tax deed, but denies that the application was in accordance with the statutes and alleges that the tax deed issued to the defendant Harbaugh was void and of no effect for the reason that the affidavit filed in the office of the county treasurer upon which the tax deed was issued was insufficient in that it failed to set forth whether the land was occupied or unoccupied, and if occupied, the name of the occupant thereof, and that if occupied, there was no service upon the occupant. Plaintiff challenges the jurisdiction of the county treasurer to execute the tax deed upon the affidavit filed; admits the recording of the tax deed and the attempted sale by the county to the defendant Harbaugh, but denies the defendant Harbaugh took possession of the property.

In his reply to the answer of the defendant Harbaugh, plaintiff challenges the sufficiency of the affidavit filed in the county treasurer's office to give the county treasurer jurisdiction to execute the tax deed upon the same grounds as set forth in his reply to the county's answer.

A trial was had before the court sitting without a jury, whereat plaintiff introduced as proof of his title: Exhibit A,--deed from Nancy E. Brown, original patentee and record title owner at the time the lands were assessed; Exhibit B,--tax deed dated March 11, 1939, issued by the county treasurer of Garfield county to the defendant Garfield county; Exhibit C,--copy of notice on the back of which was an affidavit of service filed in the office of the county clerk and recorder, and comprising all of the records in the county clerk and recorder's office relating to the application for a tax deed; Exhibit D,--notice of application for tax deed on the reverse side of which was an affidavit of proof of service upon which the tax deed, Exhibit B, was issued. This was the only affidavit or proof of service relating to the tax deed, Exhibit B, on file in the county treasurer's office and it was upon this affidavit that the tax deed was executed and delivered. This affidavit of proof of service of the application for tax deed did not state whether the lands were occupied or unoccupied, or if occupied the name of the occupant thereof, being entirely silent as to the occupancy. The only reference to said affidavit in relation to the service of the notice of application for tax deed, omitting names and descriptions, is as follows: 'That the postoffice address of _____ owner, mortgagee, assignee of mortgagee, as disclosed by the records in the Office of the County Clerk and Recorder of Garfield County, Montana, is Jordan, Montana; That on the 19th day of _____ 193_ he deposited in the postoffice at Jordan, Montana, with postage prepaid thereon, a registered letter addressed to the said owner, mortgagee, or assignee at the said postoffice address, containing a true and correct copy of the within notice of application for tax deed.'

Plaintiff agreed to pay all taxes, delinquent taxes, interest and penalties that the court would direct him to pay in the event the tax deed was set aside. It was stipulated by counsel for the parties that in the event the tax deed was set aside the county treasurer would file a certificate as to the amount of taxes, penalty and interest that might be due.

It was further stipulated that subsequent to the issuance of the tax deed, Exhibit B, the land described therein and involved in this action was conveyed by the defendant, Garfield county, to the defendant, Carl Harbaugh, by contract. With this proof, plaintiff rested.

Defendants introduced evidence showing a sale of the property by Garfield county to the defendant Harbaugh on contract and deed executed June 5, 1946, pursuant to such contract.

Defendants likewise introduced evidence showing that the defendant county leased the land to one Kirby after the execution of the tax deed; that thereafter and upon sale of the land to him, the defendant Harbaugh entered into possession of the property, building new fences thereon and repairing old ones, and that he continually used the lands in his ranching operations and openly exercised supervision and control over them.

The court made findings of fact to the effect: That on March 10 1939, at the time the tax deed was issued and for some time prior thereto, Nancy E. Brown was the owner of the real property in question; that thereafter she conveyed to plaintiff and, except only as to an instrument purporting to be a tax deed issued by the county treasurer of Garfield county, Montana, plaintiff is the owner thereof; that the taxes levied and assessed against the said lands for the year 1926 became delinquent; that the taxes for subsequent years were not paid; that on January 5, 1939, Garfield county gave notice of application for a tax deed; that on March 10, 1939, the county treasurer purported to execute to Garfield county a tax deed for the property; that the tax deed was recorded in the office of the county clerk and recorder of Garfield county; that the county clerk of Garfield county filed in his office an affidavit of proof of service of notice of application for a tax deed and filed an affidavit of proof of service of said notice of application in the office of the county treasurer, upon which the county treasurer executed and issued the said tax deed; that except as to dates, the affidavit filed in both the office of the county clerk and the office of the county treasurer are identical both as to form and as to contents; that the affidavit is on the reverse side of the notice of application for tax deed; that neither of the affidavits filed in the office of the county clerk or the office of the county treasurer states whether the lands are occupied or unoccupied, or if occupied, the name of the occupant thereof; that each affidavit or proof of service is entirely silent as to the occupancy; that on or about July 1, 1941, Garfield county sold the lands under contract to the defendant Harbaugh, who thereupon took possession and ever since said time has remained in possession thereof, making certain improvements thereon and exercising such tenure over them as to impart notice that he claimed adverse title thereto against all persons; that the plaintiff...