State v. Hays

• Decision Date: 04 November 1929
• Docket Number: 6433.
• Citation: 282 P. 32,86 Mont. 58
• Parties: STATE ex rel. v. HAYS, County Treasurer. FEDERAL LAND BANK OF SPOKANE
• Court: Montana Supreme Court

282 P. 32

86 Mont. 58

STATE ex rel. FEDERAL LAND BANK OF SPOKANE v. HAYS, County Treasurer.

No. 6433.

Supreme Court of Montana

November 4, 1929

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Mandamus by the State, on the relation of the Federal Land Bank of Spokane, a corporation, against George M. Hays, as County Treasurer of Yellowstone County. From the judgment, relator appeals. Reversed and remanded, with directions.

C. C Rowan, of Red Lodge, for appellant.

Wood & Cooke, of Billings, for respondent.

FORD J.

On rehearing the original opinion is withdrawn and this one substituted.

In 1921 the owner of section 11 and the northwest quarter of section 14, township 1 south, range 24 east, for a valuable consideration, made, executed, and delivered to relator a mortgage covering the whole of the lands described. The mortgage was duly recorded, and ever since has been, and now is, a lien upon the premises. The terms of the mortgage have been breached, and it is subject to foreclosure. A portion of the land is included within the Cove irrigation district. The state, county, school district, and irrigation taxes for the year 1923 were unpaid. In January, 1924, the lands were sold to Yellowstone county for taxes. Thereafter the Farm Mortgage Corporation purchased the tax sale certificates from the county, and has paid all subsequent taxes.

In 1927 relator, desiring to redeem from tax sale a portion of the lands covered by its mortgage, demanded of respondent, as county treasurer, that he compute and apportion the taxes delinquent upon each 40-acre tract, according to legal subdivisions. Upon the refusal of respondent to comply relator sought relief by mandamus. Respondent answered, denying the material allegations of the petition. After trial, judgment was entered denying the writ, except that respondent was required to permit redemption of section 11 and the northwest quarter of section 14 separately. From the judgment, relator appeals.

It appears from the evidence that during each of the years in question section 11 was assessed as one tract, and not by 40-acre subdivisions, and that the northwest quarter of section 14 was assessed as one tract; that, when the lands were sold for delinquent taxes, they were sold in two tracts of 640 and 160 acres, respectively, and accordingly two certificates of sale were issued to the county.

The determinative question is whether respondent, as county treasurer, is required to permit redemption by relator of a portion of the lands covered by its mortgage, according to the legal subdivisions thereof.

Relator contends that under the provisions of section 2211, Revised Codes 1921, as amended by chapter 48, Laws of 1923, it has the right to redeem any 40-acre tract covered by its mortgage; while respondent insists that, since each 40-acre tract was not separately assessed, no such right exists.

Section 2211, supra, as amended, in so far as it is pertinent, reads: "Whenever any person, firm, copartnership, corporation, or association shall desire to redeem from a tax sale and pay all subsequent taxes upon any lots, piece, or parcel of real estate, which said person, firm, copartnership, corporation, or association shall own or hold a mortgage or other lien against or have any interest in such property, it shall be the duty of the county treasurer of the county in which such real estate is situated to permit such redemption and payment; and in case the said real estate shall have been assessed or sold, together with other real estate, or in case the tax assessed against any other property shall be a lien thereon, then it shall be the duty of said county treasurer to compute and apportion the tax that should have properly been assessed against the said real estate sought to be redeemed, and upon which the taxes are sought to be paid, the same as if said property had been separately assessed."

"It is not the policy of the law that any man should forfeit his estate because from inability, or even from negligence, he has failed to meet his engagements or to perform his duties by some exact day which has been prescribed by statute. On the contrary, it is for the welfare of every community that the law should favor the citizen in all reasonable measures for the preservation of his estate against losses which might result from his misfortune or his faults, extending to him all the liberality that is consistent with justice to others and to a proper regard for the interest of the public." 4 Cooley on Taxation, § 1558.

Redemption statutes are regarded favorably and construed with liberality. 4 Id. § 1562. "Abundant reason for this is assigned in the cases which recognize the rule. It has been justly remarked that the right of the government to sell lands for taxes, as it is accustomed to do, can only be maintained on 'the absolute sovereignty of the state in the exercise of its taxing power. But it is a severe exercise of power. To divest ownership without personal notice and without direct compensation, is the instance in which a constitutional government approaches most nearly to an unrestrained tyranny. Whatever tends to modify this right is favorable to the citizen, and ought to be liberally construed, on the principle that remedial statutes are to be beneficially expounded. Redemption is the last chance of the citizen to recover his right of property."' 4 Id., § 1562.

The right to redeem is wholly statutory, and, while the statutes are to be liberally construed, yet the person seeking to redeem must bring himself within their provisions. Hartman v. Reid, 17 Colo. App. 407, 68 P. 787; Montford v. Allen, 111 Ga. 18, 36 S.E. 305; Bitzer v. Becke (Iowa) 89 N.W. 193.

"In the construction of a statute, the primary duty of the court is to give effect to the intention of the Legislature in enacting it." Lerch v. Missoula Brick & Tile Co., 45 Mont. 314, 123 P. 25, Ann. Cas. 1914A, 346; State ex rel. Vickers v. Board of County Com'rs, 77 Mont. 316, 250 P. 606, 608. "The intention is to be sought in the language employed and the apparent purpose to be subserved." State ex rel. Vickers v. Board of County Com'rs, supra; Johnson v. Butte & Superior Copper Co., 41 Mont. 158, 108 P. 1057, 48 L. R. A. (N. S.) 938; State ex rel. Carter v. Kall, 53 Mont. 162, 162 P. 385, 5 A. L. R. 1309. It will be presumed that the Legislature understood the meaning of the words used by it, and that the words were used in the common and ordinary meaning (Helena L. & Ry. Co. v. Northern P. Ry. Co., 57 Mont. 93, 186 P. 702, 703; Morrison v. Farmers' & Traders' State Bank, 70 Mont. 146, 225 P. 123; 36 Cyc. 1135), and "the meaning of a given term employed in a statute must be measured and controlled by the connection in which it is employed, the evident purpose of the statute, and the subject to which it relates" ( Northern Pacific Ry. Co. v. Sanders County, 66 Mont. 608, 214 P. 596, 598). In determining the legislative intent, we may resort to the history of the statute. State ex rel. Vickers v. Board of County Com'rs, supra; Haydon v. Normandin, 55 Mont. 539, 179 P. 460; Melzner v. Northern Pacific Ry. Co., 46 Mont. 162, 127 P. 146.

With these principles clearly established, a reference to the history of section 2211, as amended, will prove helpful in the determination of the question presented.

It seems unnecessary to go back of section 3889, Codes of 1895, since previous acts upon this subject are similar to section 3889, supra. This section provided: "A redemption of the property sold may be made by the owner or any party interested within thirty-six months from the date of the purchase, or at any time prior to the giving of the notice and the application for a deed, as provided for in this Act." The section was carried forward as section 2645, Revised Codes of 1907. Without reference to the enactment of section 2645, c. 91, Laws of 1915, was enacted which, in so far as it is applicable, read: "That whenever any person or corporation shall desire to redeem from a tax sale, or to pay any tax upon any lot, piece or parcel of real estate which said person or corporation shall own or hold a mortgage or other lien against, it shall be the duty of the County Treasurer of the County in which such real estate is situated, to permit such redemption or payment; and in case the said real estate shall have been assessed or sold, together with other real estate, or in case the tax assessed against any other property shall be a lien thereon, then it shall be the duty of the said County Treasurer to compute and apportion the tax that should have properly been assessed against the said real estate sought to be redeemed, or upon which the taxes are sought to be paid, if the same had been separately assessed," etc. (Italics ours.) Chapter 91, supra, was amended by chapter 73, Laws of 1919, by extending the right of redemption to persons or corporations "having any interest in" the real estate sought to be redeemed. This chapter was carried in to the Revised Codes of 1921 as section 2211, without change except in punctuation.

Manifestly, under this section one desiring to redeem a portion of the lands sold for delinquent taxes could do so only "if the same had been separately assessed."

Section 2211 was amended by chapter 48, supra, so as to extend the right of redemption to firms, copartnerships, and associations, and require the redemptioner to pay all subsequent taxes. The phrase "if the same had been separately assessed" was amended to read "the same as if said property had been separately assessed."

"'It has been a general rule,' says Blackburn, J. [ Hadley v. Perks, L. R. 1 Q. B. 457], 'for drawing legal documents from the earliest time, which one is taught when one first becomes a pupil to a...