Gallash v. Willis

• Decision Date: 10 June 1931
• Docket Number: 6767.
• Citation: 300 P. 569,90 Mont. 148
• Parties: GALLASH v. WILLIS.
• Court: Montana Supreme Court

300 P. 569

90 Mont. 148

GALLASH v. WILLIS.

No. 6767.

Supreme Court of Montana

June 10, 1931

Appeal from District Court, Fergus County; Edgar J. Baker, Judge.

Suit by Eugenia E. Gallash against Pearl E. Willis. Judgment for defendant, and plaintiff appeals.

Affirmed.

George D. Ore, of Lewistown, for appellant.

Merle C. Groene, of Lewistown, for respondent.

FORD J.

This action was brought by plaintiff against defendant to quiet title to the northwest quarter of the northwest quarter of section 11, township twenty, North, range seventeen East, and other lands. From a judgment for defendant, plaintiff appeals.

The complaint, in so far as material here, alleges that since November 30, 1925, plaintiff has been, and now is, the owner of the lands in question; that the same were assessed for taxes in the year 1924, which were unpaid, and the property sold to Fergus county for delinquent taxes, and a tax sale certificate issued to the county; that thereafter the certificate was sold and assigned to defendant and, on December 21, 1928, the county treasurer issued to him a tax deed covering the lands, which is a cloud upon plaintiff's title. It is further alleged that the tax deed is void for the reason that the affidavit of posting notice of application for tax deed does not show that the notice was posted in a conspicuous place upon the lands as required by law, and does not show that such notice was in fact posted upon the lands, and that the county treasurer was without jurisdiction to issue the tax deed to defendant.

Defendant's answer admits the levy of taxes in 1924, the sale of the lands, the issuance of a tax sale certificate, and the issuance to him of the tax deed, but denies that the affidavit of proof of posting of notice was defective, or that the tax deed is void. It is alleged that on March 13 1930, the county treasurer of Fergus county issued and delivered to defendant a correction tax deed covering the lands in controversy, which was duly recorded in the office of the county clerk.

Counsel for plaintiff contends, first, that the affidavit of posting notice of application for tax deed was defective and that the county treasurer was without jurisdiction to issue the tax deed; and, second, that the county treasurer was without authority to issue the correction tax deed of March 13, 1930.

1. Section 2209, Revised Codes 1921, provides that the purchaser of property sold for delinquent taxes must, thirty days previous to the time for redemption, or thirty days before he applies for deed, serve notice upon the owner in the manner particularly pointed out, and, in case of unoccupied property, such notice must be posted in a conspicuous place upon the property.

Section 2212, Id., says that "no deed of the property sold at a delinquent tax sale must be issued by the county treasurer *** to the purchaser of the property, until after such purchaser shall have filed with the treasurer *** an affidavit showing that the notice hereinbefore required to be given has been given as herein required." Here the property was unoccupied.

The affidavit of posting is the basis upon which the treasurer acts; without it he is without authority to issue the tax deed. Cullen v. Western, etc., Title Co., 47 Mont 513, 134 P. 302; Harrington v. McLean, 70 Mont. 51, 223 P. 912. It is incumbent upon the purchaser to show by his affidavit, among other things, that the notice of application for tax deed was posted as required by section 2212, supra.

The affidavit of posting recites "that on the 17th day of November, 1928, he posted said written notice of application for tax...