Conklin v. Cullen

• Decision Date: 28 October 1903
• Parties: CONKLIN v. CULLEN.
• Court: Montana Supreme Court

74 P. 72

29 Mont. 38

CONKLIN v. CULLEN.

Supreme Court of Montana

October 28, 1903

Commissioners' Opinion. Appeal from District Court, Lewis and Clarke County Henry C. Smith, Judge.

Action by S. L. Conklin against W. E. Cullen. From a judgment for defendant, plaintiff appeals. Affirmed.

A. I Loeb, for appellant.

Cullen Day & Cullen, for respondent.

CLAYBERG C. C.

This is an action to obtain relief from a tax deed to lot 1, block 25, Hauser Addition to the city of Helena. The plaintiff alleges that his agent applied to the county treasurer in 1899 to redeem the lot from tax sale and pay all delinquent taxes thereon, and that the county treasurer's office informed him that the taxes of 1896, 1897, and 1898 were all that were delinquent, giving the amounts due for taxes for those years; that as a matter of fact the taxes for 1895 had not been paid, and a sale of the lot had been made for the taxes of that year, and a certificate of sale had been given to the defendant, Cullen; that, after the deed had been given by the county treasurer to said Cullen, the plaintiff tendered to him $250 in gold, the amount paid by him in purchasing said lands, together with interest, and also the amounts paid by him for taxes on the property subsequent to the year 1895. The defendant denied the allegations of this complaint generally, except that the tax deed had been delivered to him, and that there had been tendered to him $250, which he admitted. The case was heard, and the court below entered a decree in favor of defendant, from which this appeal is taken. The appeal is from the judgment, and all the record contains is the judgment roll.

Counsel for appellant presents to this court three propositions which he insists are conclusive that the court erred. They are as follows: First, that it was the duty of the county treasurer's office, upon inquiry, to state truthfully the condition of affairs, and that, by the mistake of that office, plaintiff was not informed of the fact that the property had been sold for taxes for the year 1895; second, that under the requirements of the Political Code the county commissioners must designate the paper in which the delinquent tax notice and notice of sale must be published, and that the commissioners never made such designation, and, further, that the publication of the notice was not for a sufficient length of time; third, that a duplicate assessment book was not made during that year, and therefore the assessment was absolutely void, and no jurisdiction existed to sell the property. We shall discuss these propositions seriatim.

1. Was the appellant correct in his first contention? The decree entered contains findings of fact made by the court below upon the trial of the case. These findings disclose that on January 7, 1899, the agent for plaintiff presented to the county treasurer's office a written request for a statement of taxes due on the premises; that the deputy county treasurer after a time wrote on the back of the written request that taxes were due upon the premises for 1896, 1897, and 1898, giving the amounts. Nothing was said of the taxes of 1895. The court also found that the agent of plaintiff, when he made the above request, did not say anything with reference to redeeming the property from any sale, and that such agent did not tender the county treasurer any money for paying the particular tax involved in the case before the property had been sold at tax sale. Counsel for plaintiff, as to the first proposition, cites Black on Tax Titles, § 362, where we find the law upon this subject laid down in the following language: "But when a party, in redeeming from a tax sale, claims to have paid all charges demanded by the officer, it must appear, in order that he may be relieved as to any not demanded, that the fault was with the treasurer exclusively. The party must have demanded a search for all sales, and not allowed the treasurer to believe that a particular sale only was inquired for. Indeed, we may lay it down as a general rule that the whole responsibility must be cast upon the officer, and the redemptioner must show his own hands to be entirely clear of any share in the misunderstanding. *** Hence, if the officer exactly carries out the instructions of the owner, the latter has no ground for relief, although, through his own inadvertence, the result is entirely different from that which he supposed he was about to accomplish." Counsel also cites Corning v. Davis, 44 Iowa, 622. An examination of that case discloses the following state of facts: After a tax sale the plaintiff applied to the treasurer of the county in which the land was situated "to pay all taxes due or delinquent on the property of plaintiff there assessed, and to redeem from all tax sales that might have been made on such lands." A long list of property was given the officers, for the purpose of allowing them to make a careful examination of the books of the county and ascertain delinquent taxes and tax sales. A sum of money deemed sufficient was paid to the officers for the purpose of paying the taxes and redeeming from sales. An examination was made, certain taxes were paid, and a sum of money paid to plaintiff, with the report that no further amount was due for taxes, or required to redeem the land. The treasurer and clerk assured the plaintiff that all taxes were paid, and all lands redeemed from tax sales. The officers did not discover the sale under which defendant's deed was made until the time for redemption had expired, and prior thereto made no report to plaintiff that such sale had been made. The amount of money they received from plaintiff and repaid to him was sufficient to redeem from the tax sale under which defendant claimed title. The Supreme Court of Iowa correctly decided the point in the following language: "The other point, that, as it was the duty of the treasurer and clerk to impart the correct information to the agent of plaintiffs, applying to them to...