Glacier County v. Frisbee

• Decision Date: 28 June 1945
• Docket Number: 8481.
• Citation: 164 P.2d 171,117 Mont. 578
• Parties: GLACIER COUNTY et al. v. FRISBEE et al.
• Court: Montana Supreme Court

164 P.2d 171

117 Mont. 578

GLACIER COUNTY et al. v. FRISBEE et al.

No. 8481.

Supreme Court of Montana

June 28, 1945

As Amended on Denial of Rehearing October 10 and December 18 1945.

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

Action by Glacier County and another against C. E. Frisbee administrator of the estate of Philomine Croff, deceased, and others to quiet title to land. From an adverse decree defendant Florence Samples Hall appeals.

Reversed and remanded, with instructions.

S. J. Rigney, of Cut Bank, for appellant.

Lloyd A. Murrills, of Cut Bank, for respondents.

JOHNSON Chief Justice.

Plaintiffs Glacier county and Francis E. Manley, having prevailed in the district court in an action to quiet the title to certain land, Florence Samples Hall, the only answering defendant, has appealed from the decree so far as it relates to 160 acres of the land. Plaintiff Glacier county claims title through a tax deed dated December 15, 1927, purporting to divest appellant's title, and plaintiff Manley through a contract of sale thereof by the county dated July 16, 1941.

Defendants' answer constitutes in effect a general denial followed by affirmative defenses and cross-complaints to the effect: (1) that defendant is a member of the Blackfeet Tribe of Indians and a ward of the government, and that this land is part of 320 acres allotted to her by trust patent in 1918 under which the United States agreed to hold the same for a trust period of 25 years and at the expiration thereof to 'convey the same by patent to said Indian in fee, discharged of federal trust and free from all charge and encumbrance whatsoever'; that during the same year the United States issued her a patent in fee for the land without her application or consent and against her will; that the patent was void, the land not subject to tax, and the taxes and tax deed void; (2) that the tax deed was further void because of certain pleaded defects in the notice of application therefor and in the service of the notice.

Plaintiff demurred to the separate defenses and cross-complaints, but the demurrer was never disposed of and no reply was ever filed. This was because of proceedings under section 2214, Revised Codes, hereinafter discussed, resulting in an order requiring defendant to deposit $553.93 in court, her failure to do so, the consequent entry of her default, and the rendering of judgment upon plaintiff's showing. Section 2214 provides that orders made under it may be reviewed on appeal from the judgment.

If the court's order was for any reason erroneous, defendant's default was improperly entered, the judgment and decree must be reversed, and the cause must be remanded so that defendant's default can be vacated and further proceedings had.

Section 2214 provides in part: '* * * provided further that in any action now pending, or hereafter brought to set aside or annul any tax deed, or to quiet title, or to determine the rights of such purchaser, including the county, or his successors, to real property claimed to have been acquired by reason of tax proceedings or a tax sale, the purchaser or his successor upon filing an affidavit may obtain from the court an order directed to the person claiming to own the property, or to have any interest in or lien upon said property, or a right to redeem the same, or claiming rights hostile to the tax title (which said person is herein, for convenience, called the true owner), commanding him to deposit in court, to the use of the tax purchaser or his successors, the amount of all taxes, interest and penalties which would have accrued if said property had been regularly and legally assessed and taxed as the property of said true owner and sold for delinquent taxes and was about to be redeemed by him, and the amount of all sums reasonably paid hereafter by said purchaser or his successors after three years from the date of said tax sale in preserving said property or in making improvements thereon while in possession thereof, as the total amount of said taxes, interest, penalties and improvements is alleged by the plaintiff and shall appear in said order, or to show cause on a date to be fixed in said order, not exceeding thirty days from the date thereof, why such payments should not be made. * * * Upon the hearing of the order to show cause the court shall have jurisdiction to determine said amount and to make an order that the same be paid into court within a given time, not exceeding thirty days after the making of said order. If such amount, when so determined, shall not be paid within the time fixed by said court, then said true owner shall be deemed to have waived any defects in the tax proceedings and any right of redemption, and thereupon, irrespective of any irregularities, defects or omissions or total failure to observe any of the provisions of the statutes of Montana regarding the assessment, levying of taxes, or sale of property for taxes, and the giving of notices, including notices of redemption, or concerning tax deeds, whether or not such omissions or failures make said proceedings void (other than that the taxes were not delinquent or have been paid), the title of such true owner shall not be quiet as against said purchaser or his successors, and a decree shall be entered in said action quieting the title of said purchaser or his successor as against said true owner. If such payment shall be made into court, and said true owner shall be successful in said action and said tax proceeding shall be held void, said sum shall be paid to the purchaser or his successors. If said true owner shall not be successful in said action and the title of said purchaser or his successors shall be sustained, said money shall be returned to said true owner. * * *'

The proceedings under section 2214 were initiated by the affidavit of plaintiff Manley which recited that title to the property had been acquired by Glacier county through tax deed proceedings; that it was being acquired by him under contract of purchase from the county; that under the contract he paid Glacier county $94.50 on September 16, 1941, and $90.72 on October 2, 1942; that in addition on November 23, 1942, he paid the county the taxes legally assessed against the property for the year 1942, amounting to $8.71, and 'that Plaintiff and Affiant has reasonably paid the sum of $360.00 after three years from the date of said tax sale in preserving said property and in making improvements thereon while in possession thereof, which said improvements consist of breaking, plowing, double discing, and harrowing a portion of said lands preparatory to seeding the same.'

The affidavit included no statement of either the amount of taxes, interest and penalties actually accrued or 'the amount of all taxes, interest and penalties which would have accrued if said property had been regularly and legally assessed and taxed as the property of said true owner and sold for delinquent taxes and was about to be redeemed by him,' as required by section 2214.

Defendant filed a motion to quash the order to show cause issued upon the affidavit. This motion was apparently overruled as some three weeks later the defendant filed an answer to the same order in which she again set up the matters alleged in her affirmative defenses and cross-complaints, together with further objections to the sufficiency of the tax deed proceedings, and also resisted Manley's claim of $360 for improvements and his contention that the land was improved thereby.

At the hearing upon the order to show cause it was established that defendant is a member of the Blackfeet Tribe and a ward of the government; that the land in question is in the Blackfeet Indian Reservation and constituted part of her original allotment; that trust and fee patents were issued in 1918 as alleged in her answer; that she made no application for the fee patent; that in 1920 she conveyed 80 acres of the allotted land to her stepfather by warranty deed reciting a consideration of $800 and bearing $1 in revenue stamps. Plaintiff Manley testified as to the two payments made by him to the county on the contract, and the payment of taxes in 1942, and the work done by him on the land.

Manley's showing concerning the $360 claimed in his affidavit for the preservation and improvement of the property was limited to his testimony that he 'strip broke eighty acres and summerfallowed the same amount' and that 'the breaking and working down is worth $360.00.' There was no showing of the taxes, penalties and interest accrued upon the land or 'which would have accrued if said property had been regularly and legally assessed and taxed' during the entire period after the first tax delinquency, nor were the various annual assessments or tax levies shown for those years.

After the hearing upon the order to show cause, the court rendered a 'memorandum opinion' reciting that the trust patent for the 320 acres issued on February 28, 1918, and fee patent issued to defendant on June 11, 1918, which was recorded in the office of the county clerk and recorder of Glacier county on February 10, 1920; that the fee patent was issued to her without her application, but that on January 12, 1920, she conveyed eighty acres thereof (not part of the 160 acres here involved) to her stepfather James A. Perrine by warranty deed, which was recorded on February 10, 1920; that the tax deed to the land in question was issued to the county on December 15, 1927, for a named consideration of $359.80; that the county sold the land to plaintiff Manley on September 16 1941; that the law was that a patent in fee simple was void when granted to an Indian of the Blackfeet Tribe without the patentee's application or consent;...