NO. 81-152 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

DAVE A. ADKINS, 

Plaintiff, Respondent and 

Counterclaimant and Defendant, 

GERALDINE V. REDEYE and 

MARLIN DUANE HUEY, 

Defendants, Appellants and 

Counterclaimants and Plaintiffs. 

Appeal from: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln 

Honorable Robert M. Holter, Judge presiding. 

Counsel of Record: 

For Appellants: 

Oleson Law Firm, Kalispell, Montana 

Fennessy, Crocker & Fennessy, Libby, Montana 

For Respondent: 

Williams & Sverdrup, Libby, Montana 

Submitted on briefs: September 18, 1981 

Decided: December 23, 1981 

2 3 I981 Filed:. 

# @ Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion 

of the Court. 

Marlin Duane Huey and Geraldine V. Redeye, appellants, 

appeal from judgment entered by the District Court of the 

Nineteenth Judicial District on January 8, 1981, and from an 

order denying appellants' motion to amend the findings of 

fact, conclusions of law and judgment entered on March 10, 

1981. The judgment decreed Dave A. Adkins, respondent, the 

owner in fee simple of the following land in Lincoln County, 

Montana : 

The Southwest Quarter of the Southeast 

Quarter of Section 4, Township 30 North, 

Range 33 West, M.P.M. 

This appeal involves a dispute over title to the abovedescribed 40 acre tract of timberland, originally owned by 

Phillip Redeye. 

Phillip died in an accident in 1955. His estate was 

probated and a final decree and order was entered in Lincoln 

County, Montana, on November 23, 1956. This decree and 

order distributed the 40 acre tract to Phillip's wife, 

Geraldine V. Redeye (a/k/a Geraldine Huey) and to Phillip's 

two year old son Marlin Duane Redeye (a/k/a Marlin Duane 

Huey) as tenants in common. The November 23, 1956 order and 

decree was filed in the court probate record; however, no 

copy was ever certified and filed in the office of the 

Lincoln County Clerk and Recorder. 

Guardianship over the estate and person of Marlin Duane 

was granted to Geraldine by the Montana court. Geraldine 

and Marlin moved to Washington shortly after Phillip's 

death. Subsequently, Geraldine petitioned and was granted 

guardianship of Marlin Duane in the State of Washington. 
In 1961, Geraldine petitioned the Montana court to 

remove the personal property subject to the Montana guardianship. Removal of personal property to the State of Washington 

was authorized by a court order dated December 8, 1961. 

This order did not terminate the Montana guardianship. 

Tax receipts for the property were mailed by the Lincoln 

County Treasurer's office to the record title-owner, Phillip 

Redeye for the years 1956 to 1959 as follows: 

Redeye, Phillip 

Troy, Montana 

Redeye, Phillip 

c/o Geraldine V. Redeye 

Troy, Montana 

Redeye, Phillip 

c/o Jacob Redeye 

Troy, Montana 

Redeye, Phillip 

c/o Mrs. Geraldine Huey 

2400 Donovan, Bellingham, 

Washington 

The record is somewhat unclear as to who made payment 

of the taxes. Phillip's father, Jacob Redeye, paid the 

taxes for the year 1957 and received an assignment of tax 

sale certificate. Apparently, payment of these taxes was 

subsequently redeemed for Jacob never obtained a tax deed 

for the property. Geraldine testified that she did not 

know who had made the tax payments but had assumed that the 

attorney who had probated Phillip's estate and handled the 

guardianship proceedings was taking care of such matters. 

In 1960, 1961, 1962, 1963, and 1964 no tax payments 

were made on the 40 acre parcel. On August 10, 1965, Mrs. 

Dave A. Adkins paid the defaulted taxes and obtained an 

assignment of tax sales certificate from the Treasurer of 

Lincoln County. 
Thereafter, Dave A. Adkins undertook proceedings to 

obtain a tax deed. Adkins, via registered mail, sent notice 

of his application for tax deed to the record title-owner, 

Phillip Redeye, and also to Mrs. Geraldine Huey. Adkins 

mailed these notices to the only address available from the 

County Treasurer's records, 2400 Donovan, Bellingham, 

Washington. This notice was returned by the postal service 

marked "Moved -- Not Forwardable." 

Adkins then published notice of his application for tax 

deed in the "Western News," a newspaper of general circulation 

in Lincoln County, Montana. This publication appeared for 

two consecutive weeks on the 10th and 17th of February, 

1966. Adkins subsequently applied for and received a tax 

deed to the 40 acres on May 4, 1966. 

Thereafter, Adkins used the land. He harvested Christmas 

trees on occasion and had it selectively logged in 1969. 

He also pruned and thinned on the property. Adkins continued 

to pay all taxes on the property as they came due. 

On April 5, 1979, Dave Adkins commenced an action to 

quiet title to the property. Geraldine and Marlin responded 

and counter-claimed alleging that the tax deed relied on by 

Adkins was invalid for failure to comply with statutory 

requirements. Geraldine and Marlin tendered all taxes, 

penalties, and interest accrued from 1960 to the present. 

A trial was held on October 9, 1980. The District 

Court, sitting without jury, quieted title to the property 

in Dave A. Adkins. 

The parties present the following issues: 

1) Whether Dave A. Adkins complied with the statutory 

requirements necessary to obtain a valid tax deed? 
2) Whether Dave A. Adkins acquired title by adverse 

possession? 

3) Whether the alleged negligence of the attorney who 

probated the estate of Phillip Redeye and handled the Montana 

guardianship proceedings precludes Dave A. Adkins from 

obtaining title to the property? 

We find the first issue to be dispositive. 

Appellants contend that Adkin's procedure in obtaining 

a tax deed to the disputed property is deficient for two 

reasons: First, there was a defect in the tax title chain 

and, secondly there was insufficient notice to Geraldine and 

Marlin at the time of application for tax title. 

Appellants argue that the party who paid the deficient 

tax assessments and received an assignment of tax sale 

certificate on August 10, 1965, was a Mrs. Dave A. Adkins, 

whereas the party who undertook action culminating in the 

receipt of a tax deed on May 4, 1966, was Dave A. Adkins. 

Appellants assert that no evidence was ever presented in 

this matter establishing a legal relationship between the 

two parties. Thus, appellants allege a defect in the chain 

of tax title which necessarily invalidates the title ultimately 

obtained by Dave A. Adkins. 

After reviewing the record in this matter, it is clear 

that this contention was never raised as an issue in the 

District Court and cannot now be raised here. Kearns v. 

McIntyre Const. Co. (1977), 173 Mont. 239, 567 P.2d 433. 

In fact, appellants' pleadings assert that 

". . . on the 10th of August, 1965, Minnie 

0. Anderson, Treasurer of Lincoln County, 

Montana, assigned to counterclaimant defendant (Dave A. Adkins) an assignment of tax 

sales certificate for unpaid property taxes 

owed to said County of Lincoln for the year 

1960; that on the 4th of May, 1966, said 
Minnie 0. Anderson, Lincoln County Treasurer, 

executed and delivered a tax deed for said 

property to counterclaimant defendant (Dave 

A. Adkins) ." 

Having admitted these facts, appellants cannot claim on 

appeal that the chain of title relied upon by Dave A. Adkins 

in obtaining his tax deed was not sufficiently proven. 

Appellants also contend that Adkins failed to comply 

with the statutory requirements, for obtaining a valid tax 

deed because Adkins did not give appellants proper notice as 

required in 1966 by Section 84-4151, R.C.M., 1947 (presently 

codified as Section 15-18-202, MCA). Therefore, appellants 

claim that Adkins' tax deed is invalid and that they are 

entitled to redeem the property by paying all taxes, penalties, 

and interest accrued from 1960 to present. 

Section 84-4151, R.C.M., 1947, provides in pertinent 

part: 

"The purchaser of property sold for delinquent taxes . . . must, at least sixty (60) 

days previous to the expiration of the time 

for redemption, or at least sixty (60) days 

before he applies for a deed, serve upon the 

owner of the property purchased, -- if known 

. . . a written notice . . . and the owner 

of the property . . . has the right of redemption indefinitely until such notice has 

been given . . . In all cases where the postoffice address of the owner . . . is unknown, 

the applicant shall publish once a week for 

two (2) successive weeks in a newspaper published in the county where the property is 

situated, a notice substantially in the following form . . ." 

This Court has consistently held that the statutory 

requirements for obtaining a tax deed must be fully satisfied. 

Lowery v. Garfield County (1949), 122 Mont. 571, 208 P.2d 

478. The court in Lowery also stated that: 

"The giving of the notice is jurisdictional 

and unless the requirement of the law in 

respect to such notice is complied with and 

that fact established by the affidavit filed 

with the county treasurer the tax deed may 

not legally issue." 122 Mont. at 580, 208 

P.2d at 483. 
With this in mind we turn to the notice given in this case. 

Adkins first attempted service of his notice of application for tax deed by mailing registered letters containing 

such notice to the address and names listed on the 1959 tax 

receipt records of the County Treasurer. This tax receipt 

for 1959, the year in which taxes had last been paid upon 

the property, listed Phillip Redeye as the record titleowner and noted the mailing address to be: c/o Mrs. Geraldine 

Huey, 2400 Donovan, Bellingham, Washington. 

These notices were returned to Adkins marked "Moved -- 

Not Forwardable." Adkins then published the statutory 

notice required by Section 84-4151, R.C.M., 1947 in the 

"Western News" on February 10th and 17th, 1966. Adkins then 

proceeded to obtain a tax deed to the property on May 4, 

1966. 

Appellants argue that, although Phillip Redeye was 

still listed as the record title-owner on the treasurer's 

tax rolls, nevertheless Adkins could easily have searched 

the probate judgment book, found the order and decree, and 

thus determined the true owners of the property. Appellants 

claim that Adkins' failure to conduct such a search resulted 

in defective notice because Adkins' efforts at giving notice 

completely excluded the minor, Marlin Duane Huey, from the 

notice process. 

The duty owed by a tax deed applicant for discovering 

all true owners of property and their correct addresses was 

recently discussed by this Court in Madden v. Zimmerman 

(1975), 166 Mont. 285, 532 P. 2d 414. In Madden we stated 

that: 

"The statute (884-4151, R.C.M. 1947) sets forth 

the notice required by a petitioner for a tax 

deed, to require more is not within the power 

of this Court. To require the petitioner to 
search other or all legal records and to be on 

notice of all legal publications which may 

affect title to the property would be onerous. 

"Therefore the burden must fall to the taxpayer to keep the taxing authorities informed 

of his interest in the land and his current 

address. " (citation omitted) 166 Mont. at 

289-290, 532 P.2d at 417. 

Applying this holding to the instant case, it is clear 

that appellants had a duty to keep the Lincoln County taxing 

authorities apprised of their correct address. Such action 

was never taken. Adkins conducted the search required of 

him to ascertain the owners of the property. He then 

complied with the requirements of Section 84-4151, R.C.M., 

1947, relating to the giving of notice. Adkins attempted to 

give notice by registered mail; once this failed he resorted 

to the statutorily permissible mode of notice by publication. 

We hold that Adkins' compliance with Section 84-4151, 

R.C.M., 1947, afforded Geraldine, personally, and Marlin 

Duane, through Geraldine, his guardian of both person and 

estate, proper notice of the application for tax deed. 

Although the question has not arisen often or recently, 

other jurisdictions have held that notice by publication is 

sufficient as to a minor's interest in real property. Hardy 

v. Beaty (1892), 84 Tex. 562, 19 S.W. 778; Wheeler v. Scully, 

et al. (1872. Ct. of App.), 50 N.Y. 666. 42 Am.Jur.2dI 

Infants, S197, provides in part: 

"Moreover, the rules that unknown claimants 

of property may be served by publication and 

that a judgment rendered against them is valid 

at least to the extent that it is in rem or 

quasi in rem apply to infant defendants." 

Therefore, we hold Dave A. Adkins properly complied 

with all necessary statutory requirements for obtaining a 

tax deed and the deed issued by the Lincoln County Treasurer 
on May 4, 1966 is valid. The issue of adverse possession is 

moot. 

Appellants' allegation regarding the negligence of the 

attorney who probated Phillip Redeye's estate and who handled 

the guardianship proceedings for Geraldine Redeye was never 

raised in the pleadings nor presented to the District Court. 

As previously stated, issues must be presented before the 

District Court and may not be raised for the first time on 

appeal. Kearns v. McIntyre Const. Co. (1977), supra. 

Therefore, this Court declines to review appellants' second 

issue. 

The judgment of the District Court is affirmed. 

We Concur: