Arnold v. Custer County
| Decision Date | 24 July 1928 |
| Docket Number | 6308. |
| Citation | 269 P. 396,83 Mont. 130 |
| Parties | ARNOLD et al. v. CUSTER COUNTY et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Custer County; S.D. McKinnon, Judge.
Suit by J. E. Arnold and others against Custer County and others. From an order refusing to grant an injunction pendente lite and dissolving a restraining order, plaintiffs appeal. Affirmed.
George W. Farr, R. B. Hayes, and W. H. O'Connell, all of Miles City, for appellants.
Rudolph Nelstead, Loud & Leavitt, and H. E. Herrick, all of Miles City, for respondents.
The appeal in this case is taken from an order of the trial court, refusing to grant an injunction pendente lite and dissolving a restraining order.
Custer county had bid in and purchased, at tax sale, certain pieces of real estate situate therein and sold for delinquent taxes. The period for redemption thereof having expired, the board of county commissioners decided to take steps to obtain deeds thereof to the county. An offer was made to the board, by the Custer Abstract Company, engaged in the title abstract business in Custer county, to furnish certain information appertaining and necessary thereunto. In that connection, there appears in the journal of the board's proceedings this entry:
Thereafter and in pursuance thereof, the Custer Abstract Company furnished to the county clerk, as to each of many of such pieces of real estate, a report containing all information required by law and necessary in the making of application to the county treasurer for a deed thereto and the giving of notice thereof, as provided in section 2209, Revised Codes 1921, and the making of the affidavit provided for in section 2212, Revised Codes 1921, and the county clerk used such information in the matter of procurement of the deeds for which he had been directed by the board of county commissioners to make application. As to each of such pieces of real estate, the information consisted of the name of the owner, the name of the occupant, if occupied, the name of the mortgagee, if the records in the office of the county clerk showed an unreleased mortgage, and the name of the assignee of mortgage, if there was, of record, an assignment of such a mortgage.
September 26, 1927, the Custer Abstract Company filed with the county clerk a claim in the sum $3,525, against Custer County, for 705 such reports, and October 5, 1927, the board of county commissioners allowed the claim and the county clerk drew and delivered to the abstract company a county warrant, for that amount, in payment of the claim, and October 25, 1927, the abstract company filed with the county clerk a claim in the sum of $1,465, against the county, for 293 more reports.
November 5, 1927, plaintiffs, as resident taxpayers of Custer county instituted this suit against the county and the members of the board of county commissioners, to enjoin them from allowing for payment the claim filed October 25, 1927, or any other such claim of the abstract company. In their complaint they allege the facts we have narrated and allege further that the allowance and payment of the claim which was allowed and paid were illegal, for the reason that the board of county commissioners had no authority to accept the offer of the Custer Abstract Company; that, unless enjoined therefrom, the board will allow the claim of the abstract company filed October 25, 1927, which is an illegal claim, and, in that event, it will be paid; that the abstract company is continuing to do work under its proposal, accepted by the board, and is continuing to furnish such reports, and it will have other claims therefor to file, all of which will be illegal and allowance of which would be without authority of law; that, if appeal from allowance of each of such claims, filed or to be filed, should be taken, from month to month, a multiplicity of suits would result. It is prayed that the board be enjoined permanently from allowing any claim of the abstract company for furnishing such reports and particularly from allowing the claim filed October 25, 1927, and that an order, directed to the members of the board, issue, requiring them to appear upon a day certain and show cause why they should not be enjoined from so doing, pending the litigation, and that meantime a restraining order issue.
An undertaking was filed, and the order to show cause issued and was served. It was accompanied by a restraining order.
On the return day, defendants appeared and filed a return and answer. In it are admitted the offer of the abstract company alleged in the complaint and the entry in the journal of the board's proceedings which is set forth in the complaint; also the filing of the abstract company's claim against the county for 705 reports and allowance and payment thereof and the filing of its claim for 293 more reports and that the abstract company is continuing to furnish such reports and will have more claims therefor to file. It is denied that the acceptance by the board of the abstract company's offer was without authority of law and that the allowance and payment of the abstract company's claim which was allowed and paid were illegal. It is alleged that the land bid in and purchased by the county at tax sale, for delinquent taxes, and subject to tax deeds, for which the county held certificates of sale, comprised more than 1,500 tracts or lots, consisting of more than 162,000 acres, and that the delinquent taxes thereon amounted to more than $170,000, and the assessed valuation of the land was more than $1,000,000; that the Montana tax commission had required county commissioners to procure tax deeds to all lands upon which taxes had been delinquent for the required statutory time; that the board decided it was advisable and necessary to procure tax deeds to such land in Custer county and proceeded to do so; that, in order for the county to sell such land, it was necessary that the county procure merchantable title thereto, and to do that it was necessary for the county to give legal notice of application for tax deeds to all owners, mortgagees, or assignees of mortgages; that the information necessary thereto could be furnished, with any degree of certainty, only by an abstractor of titles, and, to that end, the board requested the Custer Abstract Company to submit to the board its proposal for furnishing such information, and it did so, and the board accepted the proposal, and thereupon the abstract company proceeded to furnish and did furnish the county clerk with a large number of reports, containing the required information as to different and divers tracts of such land; that such reports were necessary and the expense incurred thereby is a legal expense and a legal charge upon the county; that such reports constitute the only manner in which the county, through its county clerk, can proceed with any certainty in procuring tax deeds, and it is to the best interest of the county to have such reports.
In a further return and answer, it is alleged that notice of application for a tax deed must be given by the applicant to all owners, mortgagees, or assignees of mortgages of the land affected; that, pursuant to law, the county clerk of Custer county maintains indices of deeds, mortgages, and assignments of mortgages, and that such indices are the only means the county clerk has of learning anything about state of title to a particular piece of land; that, by reason of breaks in chains of title, the information necessary for such notices, so the county could give the notice required by law and procure merchantable title, cannot be obtained, with any reasonable certainty, from such indices; that the only way in which the county can obtain such information is by means of reports from an abstractor of titles, taken from a tract index, a record system used by abstractors and kept and used by the Custer Abstract Company. Defendants prayed that plaintiffs be granted nothing and that their complaint be dismissed. There was no reply.
The hearing upon the order to show cause and the issues joined proceeded at the time set therefor. It was had upon oral testimony and documentary evidence offered in connection therewith.
The county clerk was the only witness who testified on behalf of plaintiffs. On behalf of defendants, there was testimony from the chairman of the board of county commissioners, a former county clerk, several abstractors, and two of plaintiffs' attorneys.
From all thereof it was shown clearly, we think, that, as required by law, the county clerk keeps in his office record books in which are recorded deeds, real estate mortgages, and assignments of such mortgages and alphabetical name indices to such records; that the only feasible way in which he can obtain information,...
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