Rush v. Lewis and Clark County

• Decision Date: 25 May 1908
• Citation: 95 P. 836,37 Mont. 240
• Parties: RUSH v. LEWIS AND CLARK COUNTY et al.
• Court: Montana Supreme Court

95 P. 836

37 Mont. 240

RUSH v. LEWIS AND CLARK COUNTY et al.

Supreme Court of Montana

May 25, 1908

On rehearing. Affirmed.

For former opinion, see 93 P. 943.

McConnell & McConnell, Albert J. Galen, Atty. Gen., and E. M. Hall Asst. Atty. Gen., for appellants.

Massena Bullard and Edward Horsky, for respondent.

WINSTON District Judge.

A rehearing was granted herein, on the appellants' motion upon the questions: What significance, if any, should be given to the recitals in the tax deeds touching the method by which the county of Lewis and Clark obtained title to the lands in controversy? Are these recitals surplusage or not?

Counsel for appellants contend that the deeds do not affirmatively show that the county was a competitive bidder, because they show that the county took all the lands for the taxes; and the statement in the deeds "that at said auction Lewis and Clark county was the bidder who was willing to take the least quantity or smallest portion of said land and pay the taxes," etc., as well as the statement that the land "was by said county treasurer aforesaid, on the 25th day of January, 1901, in accordance with law, to pay said taxes charges and costs delinquent as aforesaid, offered at public auction in front of the county treasurer's office," show affirmatively that there was no other bidder for said lands, and therefore no competitive bidding; and that the recitals in the deeds as to the method by which the county of Lewis and Clark obtained title to the lands in controversy are not necessary to the validity of the deeds, and should be treated as surplusage. Appellants further contend that the presumptions "that official duty has been regularly performed" and "that the law has been obeyed" prevail, until they are overcome by competent evidence, and that there is nothing in the deeds to overcome these presumptions. We cannot sustain this contention, in the light of the of recitals in the deeds. The statement in the deeds that the land was offered "in accordance with law" is merely a statement of a conclusion of law, and can impart no validity to the deeds, especially in the face of the plain recitals in the deeds to the effect that the property was sold at public auction, and the county of Lewis and Clark was a bidder at such auction.

It is contended by appellants that, so long as a tax deed to a county recites the matters required by law to be recited in a tax deed to an individual, and does not affirmatively show that the statute, in respect to the county as a bidder, was not complied with, it is a valid deed....