Cavitt v. Seirson

• Decision Date: 23 December 1946
• Docket Number: 8632.
• Citation: Cavitt v. Seirson, 119 Mont. 437, 175 P.2d 767 (Mont. 1946)
• Parties: CAVITT v. SEIRSON et al.
• Court: Montana Supreme Court

175 P.2d 767

119 Mont. 437

CAVITT v. SEIRSON et al.

No. 8632.

Supreme Court of Montana

December 23, 1946

Appeal from District Court, Ninth District, Toole County; R. M Hattersley, Judge.

Action to quiet title by Wilbur M. Cavitt against Soren Seirson and others, wherein the defendants John C. Klas and wife filed a cross-complaint against Toole County. From the judgment in favor of the defendants Klas, the plaintiff and Toole County appeal, and, from an order commanding the defendants Klas to pay a sum of money into court, they cross-appeal.

Reversed on plaintiff's appeal and cause remanded with instructions.

E. J McCabe, of Great Falls, and Cedor B. Aronow and W. M. Black Co. Atty., both of Shelby, for appellants.

D. W Doyle, of Conrad, for respondents.

MORRIS Justice.

This is an action to quiet title to two tracts of land in Toole county. The first tract mentioned in the complaint is described as follows: The West half (W 1/2) of Section Twenty-seven (27), Township Thirty-four (34) North of Range Three (3) East, State of Montana, County of Toole. The second tract is described as The Northwest Quarter (NW 1/4) of Section Twenty-eight (28), Township Thirty-four (34) North of Range Three (3) East, M.P.M. The action as to the last mentioned tract was not contested, and judgment was for the plaintiff as to that quarter section, but judgment was against the plaintiff as to the half section first above described and in favor of the original owners, John C. and Helen N. Klas, husband and wife. The plaintiff claims title through a tax deed from Toole county. On petition of the plaintiff the court made and entered an order, pursuant to the provisions of section 2214, Revised Codes of 1935, commanding Klas and wife to show cause why they should not deposit in court $481.05 as and for 'the sum of all taxes, interest and penalties which would have accrued if said property had been regularly and legally taxed' as the property of the defendants, and in addition to that sum, the further sum of $800, to be paid the plaintiff for preserving and improving the property in the event the defendants were successful in the action.

In the tax deed conveying the land to the plaintiff, Toole county reversed six and one quarter per cent. of all oil, gas and minerals in the land involved and the defendants Klas and wife, after interposing a general demurrer to the complaint and answering generally, filed a cross-complaint against Toole county in order to foreclose any interest the county might have in the land and mineral rights. Defendants further filed an 'affidavit of merits' pleading excusable neglect in not resisting the order to show cause in due course commanding the defendants to pay into court the amounts heretofore mentioned, and setting forth reasons why the $800 for improving and preserving the property should not be allowed. The court refused to relieve the defendants from the obligation to pay the plaintiff the $800 demanded. The plaintiff appealed from the judgment in favor of the defendants, and the defendants filed a cross-appeal from the court's order commanding them to pay into court the $800 heretofore mentioned.

The four assignments of error specified, all challenge the sufficiency of the pleadings and the evidence to sustain the findings of the court and the decree denying plaintiff's prayer to have quiet title to the land. Such findings as were made are incorporated in the decree, the pertinent part of such findings being as follows:

'That the plaintiff has failed to sustain the allegations of his complaint as against the defendants John C. Klas and Helen N. Klas.

'That each and all of the allegations of the cross-complaint of the defendants, John C. Klas and Helen N. Klas are true and correct.'

It will be remembered the cross-complaint relates to the claim of Toole county relative to the six and one-fourth per cent. of the mineral rights reserved by the county in its tax deed to the plaintiff.

The defendants resist the demands of the plaintiff on four grounds: (a) They contend that 'there is no proof in the record of the filing of an affidavit of proof of the giving of the notice of the application for the tax deed in the office of the county treasurer' pursuant to the provisions of section 2212, Revised Codes; (b) that the tax deed is void for the reason that notice of application therefor 'was not filed immediately in the office of the recorder after such notice of application was given;' (c) that the deed is void because the notice of application for the deed does not show when the time for redemption would expire; and (d) that neither the application nor the affidavit made in support thereof requiring the deposit of the $800, was sufficient to warrant the court in making the order commanding such deposit be made.

As to contention (a): Section 2212, Revised Codes of 1935, in so far as pertinent here, provides: 'No deed of the property sold at a delinquent tax sale must be issued by the county treasurer, or any other officer, to the purchaser of the property, until after such purchaser shall have filed with the treasurer, or other officer, an affidavit showing that the notice hereinbefore required to be given has been given as herein required, * * *'.

The notice mentioned in section 2212 is the notice provided for by section 2209, Revised Codes of 1935. That is, the notice of intention to apply for the tax deed. The record shows that the notice of intention to apply for the tax deed was given but it fails to show whether or not the county clerk made and filed with the county treasurer the affidavit required by section 2212. Defendants contend that such proof not appearing in the record the county treasurer was without authority to issue the tax deed. In support of this contention the following cases are cited: B. Kesselheim, Inc. v. Cocklin, 116 Mont. 150, 148 P.2d 945; Gallash v. Willis, 90 Mont. 148, 300 P. 569; Jensen Livestock Company v. Custer County, 113 Mont. 285, 124 P.2d 1013, 140 A.L.R. 658; Harrington v. McLean, 70 Mont. 51, 223 P. 912; Cullen v. Western Mortgage & Warranty Title Co., 47 Mont. 513, 134 P. 302.

We held in the Kesselheim case that 'The validity of a tax deed depends upon compliance with the statute authorizing its issuance.' This of course, must be conceded, as the power to issue tax deeds is derived solely from the statutes. We further said in that case that 'there can be no question that the effect of the statute is to empower the treasurer to issue the deed only upon the filing with him of the required affidavit, * * *' This is also an essential act the performance of which it is idle to question. It is not, however, the filing of the affidavit that is involved in the case at bar but the failure of the plaintiff to have the proof of such filing appear in the record of the action.

Counsel for plaintiff admitted in the oral argument on appeal that this defect exists in the record but insists that the presumptions set out in subsections 15 and 33 of section 10606, Revised Codes of 1935, cure that defect. Such presumptions respectively provide:

'15. That official duty has been regularly performed.'

'33. That the law has been obeyed.'

'A presumption is a deduction which the law expressly directs to be made from particular facts.' Sec. 10602, Rev.Codes.

And a disputable statutory presumption is controlling if uncontradicted (Renland v. First Nat. Bank, 90 Mont. 424, 4 P.2d 488), and 'The statute commands that it must be followed if uncontroverted' ( McMahon v. Cooney, 95 Mont. 138, 144, 25 P.2d 131, 133), and that, 'Until the contrary is shown, it is presumed that official duty has been regularly performed'. State v. Tesla, 69 Mont. 503, 508, 223 P. 107, 108. There is a modification of this rule, however, which is to the effect that a presumption must be grounded upon an established fact and cannot be grounded upon another presumption. See Kern v. Payne, 65 Mont. 325, 211 P. 767; First National Bank v. Sorenson, 65 Mont. 1, 210 P. 900. We think the necessary facts upon which the presumptions mentioned in subsections 15 and 33 of section 10606 may be grounded are established by the following verified recitals in the record:

In section 2213, Revised Codes of 1935, and in the body of such deed as it appears in the record, are these words, 'and the said grantee has given the necessary notice of application for tax deed as required by law.' Accompanying this entry in the record is the acknowledgement of the county treasurer of Toole county, taken under oath before the county clerk, all done pursuant to the statute, and the seals of both the county treasurer and the county clerk are shown to have been attached to the instrument as copied in the record, and the record copy is also certified by the county clerk under his official seal and over the signature of this officer he certifies that the deed as copied in the record 'is a true, complete and correct copy of the original on file in my office.'

It appears that the deed was filed for record 'Oct. 21 1941, at 9:13 o'clock AM.' The copy of the deed appears in the record as 'Plaintiff's Exhibit 1,' and such exhibit was received in evidence without objection. Insertion in the record of the form of the deed taken from the book of deeds in the office of the clerk and recorder, and its correctness certified to as here, its admission without objection was as good evidence of the contents of the deed as the deed itself. We think this part of the record made in the lower court establishes facts sufficient prima facie to sustain the statutory presumptions heretofore mentioned. In our opinion the record so made establishes the fact that the affidavit required by section 2212 was made and filed with the county treasurer in...