Sanderson v. Bateman, No. 6078.

Docket NºNo. 6078.
Citation78 Mont. 235
Case DateFebruary 16, 1927
CourtUnited States State Supreme Court of Montana

78 Mont. 235

SANDERSON
v.
BATEMAN, County Treasurer.

No. 6078.

Supreme Court of Montana.

Feb. 4, 1927.
Rehearing Denied Feb. 16, 1927.


Original proceeding by John A. Sanderson, receiver of Commercial National Bank of Miles City, against Joseph Bateman, as Treasurer of Custer County, to obtain a writ of mandate commanding him to permit redemption of lands described in plaintiff's complaint. Proceeding dismissed.


Loud & Leavitt, of Miles City, for plaintiff.

L. A. Foot, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for defendant.


Sterling M. Wood, of Billings, amicus curiæ.

CALLAWAY, C. J.

This is a proceeding commenced originally in this court by the plaintiff, as receiver of the Commercial National Bank of Miles City, against the treasurer of Custer county, to obtain a writ of mandate commanding him to permit the redemption of the lands described in plaintiff's complaint.

Omitting formal allegations, the complaint shows the receiver to be the holder of title to the lands derived through mortgage foreclosure proceedings. Plaintiff's predecessor in interest, while owner of the lands, permitted the taxes levied and assessed thereon for the year 1920 to become delinquent, and in 1921 the lands were sold for the taxes. Upon the sale Custer county became the purchaser, and received a certificate of tax sale therefor. No assignment of the certificate of sale has been made by Custer county, which is now the owner and holder thereof. Plaintiff's predecessor permitted the taxes levied and assessed against the lands for the years 1921, 1922, 1923, 1924, and 1925 to become delinquent, and the treasurer duly noted the delinquencies upon the proper records of his office. The lands were sold by the county for the delinquent taxes of the subsequent years under its certificate of sale issued for the 1920 taxes.

Prior to the date of filing the complaint, the plaintiff receiver tendered to the treasurer the amount of the original tax levied and assessed upon the lands for the years 1920, 1921, and 1922, and also an amount sufficient to pay the delinquent taxes, with interest and legal charges for the years 1923, 1924, 1925, and 1926. It is alleged that the treasurer wrongfully and unlawfully refused to accept the tender, and refused to permit the plaintiff to redeem the lands from the delinquent tax sales, unless plaintiff would pay to the treasurer 10 per cent. “penalty,” publication charges, and interest at the rate of one per cent. per month, upon the 1920, 1921, and 1922 taxes, respectively. The complaint then sets out the provisions of chapter 63 of the Session Laws of the Eighteenth Legislative Assembly, and it is alleged that this chapter continued in force until 1925, when it was repealed by chapter 77 of the Session Laws of the Nineteenth Legislative Assembly, which also is set out in the complaint. The complaint contains adequate allegations setting forth the reasons for asking leave to bring this action as an original proceeding in this court. The defendant has appeared and filed a general demurrer to the complaint. The case has been argued ably by counsel for plaintiff and defendant as well as by amicus curiæ.

In 1920 the law required the county treasurer, within 10 days after the receipt of the duplicate assessment book from the county clerk (section 2161, R. C. 1921), to publish a notice specifying that taxes would be delinquent on the 30th day of November next thereafter at 6 o'clock p. m., and that, unless paid prior thereto, 10 per cent. would be added to the amount thereof (chapter 15, Session Laws 1917, p. 15, afterward section 2169, R. C. 1921). (For convenience the sections of the Revised Codes of 1921 are used, unless otherwise specified, rather than the corresponding sections of the Revised Codes of 1907; the sections being identical except as to numbers.)

Section 2175, R. C. 1921, provided:

“On the thirtieth day of November of each year, at six o'clock p. m., all unpaid taxes are delinquent, and thereafter the county treasurer must collect, for the use of the county, an addition of ten per cent.”

On the third Monday of December the treasurer was required to make settlement with the county clerk, and to deliver to him “a complete delinquent list of all persons and property then owing taxes.” Sections 2176-2179, R. C. 1921. After settlement with the county treasurer, the county clerk was required to charge him “with the amount of taxes due on the delinquent list, with the ten per cent. added thereto, and within three days thereafter deliver the list, duly certified, to such county treasurer.” Section 2180, R. C. 1921. The treasurer was then required to publish the delinquent tax list with a notice that, unless the taxes delinquent, together with the costs and percentage be paid, the real property would be sold at public auction. Sections 2182, 2183, R. C. 1921.

Section 2188, R. C. 1921, provided:

“The county treasurer must collect, in addition to the taxes due on the delinquent list and ten per centum added thereto, fifty cents on each lot, piece, or tract of land separately assessed, and on each assessment of personal property, which must be paid to the county to pay the cost of such publication.”

At the sale, if no purchaser in good faith appeared (section 2191, R. C. 1921), the county treasurer was required to strike off the property to the county as the purchaser and to file “the duplicate certificate of sale” in his office, in which case he made an entry “sold to the county” on the duplicate assessment book opposite the tax, and thereupon he was entitled to be “credited with the amount thereof in the settlement.” The duplicate certificate of sale referred to in section 2191 is provided for in section 2194, R. C. 1921.

Section 2207, R. C. 1921, enacted as section 1 of chapter 151, Laws of 1917, provides:

“At any time after any parcel of land has been bid in by the county as the purchaser thereof for taxes, as provided in section 2191, the same not having been redeemed, the county treasurer shall assign all the right of the county therein, acquired as such sale, to any person who shall pay the amount for which the same was bid in, with interest thereon at the rate of one per cent. per month, and the amount of all subsequent delinquent taxes, penalties, costs, and interest, as provided by law, upon the same from time to time when such tax became delinquent. * * *”

Interest at the rate of one per cent. per month must be collected on such delinquent taxes from the time they were first delinquent until paid. Section 2221...

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22 practice notes
  • Board of County Com'rs. of Big Horn County v. Bench Canal Drainage Dist., 2174
    • United States
    • United States State Supreme Court of Wyoming
    • December 31, 1940
    ...thereof into the proper treasury." Counsel for the county rely upon State v. Fischl, 94 Mont. 92, 20 P.2d 1057; Sanderson v. Bateman, 78 Mont. 235, 253 P. 1100; Olivier v. City of Houston, 93 Tex. 201, 54 S.W. 940, which involved a constitutional provision similar to ours. Neither of these ......
  • O'Connell v. State Bd. of Equal., No. 7151.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 30, 1933
    ...or, speaking accurately, against the person upon the basis of his ownership of property (Hilger v. Moore, supra; Sanderson v. Bateman, 78 Mont. 235, 253 P. 1100), it is void as a levy in excess of the limit provided in section 9 of article 12, which prohibits a levy at a rate of taxation on......
  • Farr v. Nordman, No. 90
    • United States
    • Supreme Court of Michigan
    • September 4, 1956
    ...on a delinquent taxpayer by the laws of this state are to be considered as a part of the tax itself. The cases of Sanderson v. Bateman [78 Mont. 235, 253 P. 1100] and State ex rel. Kain v. Fischl [94 Mont. 92, 20 P.2d 1057], supra, held that the penalties and interest were a part of the tax......
  • Steinacher v. Swanson, No. 29829.
    • United States
    • Supreme Court of Nebraska
    • July 8, 1936
    ...has assigned its certificate of sale to a citizen, the redemptioner must assume and discharge a like burden.’ Sanderson v. Bateman, supra [78 Mont. 235, 253 P. 1100]. In so far as the law operates upon taxpayers of the same class, requiring, as it does, full payment from some delinquents an......
  • Request a trial to view additional results
22 cases
  • Board of County Com'rs. of Big Horn County v. Bench Canal Drainage Dist., 2174
    • United States
    • United States State Supreme Court of Wyoming
    • December 31, 1940
    ...thereof into the proper treasury." Counsel for the county rely upon State v. Fischl, 94 Mont. 92, 20 P.2d 1057; Sanderson v. Bateman, 78 Mont. 235, 253 P. 1100; Olivier v. City of Houston, 93 Tex. 201, 54 S.W. 940, which involved a constitutional provision similar to ours. Neither of these ......
  • O'Connell v. State Bd. of Equal., No. 7151.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 30, 1933
    ...or, speaking accurately, against the person upon the basis of his ownership of property (Hilger v. Moore, supra; Sanderson v. Bateman, 78 Mont. 235, 253 P. 1100), it is void as a levy in excess of the limit provided in section 9 of article 12, which prohibits a levy at a rate of taxation on......
  • Farr v. Nordman, No. 90
    • United States
    • Supreme Court of Michigan
    • September 4, 1956
    ...on a delinquent taxpayer by the laws of this state are to be considered as a part of the tax itself. The cases of Sanderson v. Bateman [78 Mont. 235, 253 P. 1100] and State ex rel. Kain v. Fischl [94 Mont. 92, 20 P.2d 1057], supra, held that the penalties and interest were a part of the tax......
  • Steinacher v. Swanson, No. 29829.
    • United States
    • Supreme Court of Nebraska
    • July 8, 1936
    ...has assigned its certificate of sale to a citizen, the redemptioner must assume and discharge a like burden.’ Sanderson v. Bateman, supra [78 Mont. 235, 253 P. 1100]. In so far as the law operates upon taxpayers of the same class, requiring, as it does, full payment from some delinquents an......
  • Request a trial to view additional results

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