### NO. 81-152 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

DAVE A. ADKINS, Plaintiff,Respondent and Counterclaimantand Defendant,

GERALDINE

### V. REDEYE and MARLIN DUANE HUEY, Defendants,Appellants and Counterclaimantsand Plaintiffs.

Appeal from: District Court of the Nineteenth Judicial District, In and for the County of 

### Lincoln Honorable Robert M. Holter, Judgepresiding. 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 

## 23

## I981 Filed:.



### # @ 

### ClerkMr. 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 DistrictCourt of the Nineteenth Judicial Districton 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 infee simple of the following land inLincoln County, Montana: The Southwest Quarterof the Southeast Quarterof Section 4, Township 30 North, Range 33 West, M.P.M. This appeal involves 

### a dispute over 

### title to the abovedescribed 40 acre tractof timberland, originallyowned by Phillip Redeye. Phillip died inan accident in 1955. Hisestatewas probated and a final decree and order was entered inLincoln County, Montana, on November 23, 1956. This decree and order distributed the 40 acre tract toPhillip's wife, Geraldine V. Redeye (a/k/a Geraldine Huey) and toPhillip's two year old son Marlin Duane Redeye (a/k/a Marlin Duane Huey) astenants incommon. The November 23, 1956 order and decree was filed inthe courtprobate record; however, no copy was ever certified and filed inthe office of the Lincoln County Clerk and Recorder. Guardianship over the estate and person of Marlin Duane

was granted toGeraldine by the Montana court. Geraldine and Marlin moved toWashington shortly afterPhillip's death. Subsequently, Geraldine petitioned and was granted guardianship of Marlin Duane inthe State of Washington.In 1961, Geraldine petitioned theMontana court to

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

was authorized by a court order dated December 8, 1961. This order did not terminate the Montana guardianship. Tax receipts for the property 

### weremailed 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 guardianshipproceedings was taking care of such matters. In 1960, 1961, 1962, 1963, and 1964 no tax payments


### weremade on the 40 acreparcel. 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, sentnotice of his application for tax deed to the record title-owner, Phillip Redeye, and also toMrs. 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 inLincoln County, Montana. This publication appeared for two consecutive weeks on the 10thand 17thof 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 alsopruned and thinned on the property. Adkins continued topay alltaxes 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 alltaxes, penalties, and interest accrued from 1960 to the present. A trialwas held on October 9, 1980. The District Court, sittingwithout jury, quieted title to the property inDave 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 titleby adverse possession? 3) Whether the alleged negligence of the attorney who probated the 

### estate of Phillip Redeye and handled theMontana guardianship proceedings precludes Dave A. Adkins from obtaining 

### title to the property? We find the firstissue tobe dispositive. Appellants contend thatAdkin's procedure inobtaining

a tax deed to the disputed property 

### isdeficient for two

reasons: First, there was a defect in the tax 

### title chain and, secondly there was insufficientnotice to Geraldine and Marlin atthe 

### timeof 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 theparty who undertook action culminating inthe receipt of a tax deed on May 4, 1966, was Dave A. Adkins. Appellants assert thatno evidence was ever presented in thismatter establishing a legal relationship between the two parties. Thus, appellants allege a defect in the chain of tax 

### titlewhich necessarily invalidates the 

### title ultimately obtained by Dave A. Adkins. After reviewing the record inthismatter, 

### it is clear that this contention was never raised as an issue inthe DistrictCourt and cannot now be raised here. Kearns v. McIntyre Const. Co. (1977), 173Mont. 239, 567 P.2d 433. In fact, appellants' pleadings assert that 

# ".



# . . on the 10thof 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, saidMinnie 0. Anderson, Lincoln County Treasurer, executed and delivered a tax deed for said property tocounterclaimant defendant (Dave A. Adkins)

# ." Having admitted these facts, appellants cannot claim on appeal that the chain of titlerelied upon by Dave A. Adkins inobtaining his tax deed was not sufficientlyproven. Appellants also contend thatAdkins failed to comply with the statutoryrequirements, 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 thatAdkins' tax deed 

### isinvalid and that they are entitled toredeem the property by paying alltaxes, penalties, and interestaccrued from 1960 topresent. Section 84-4151, R.C.M., 1947, provides inpertinent part: "The purchaser of property sold for delinquent taxes

# . .. must, atleast sixty (60) days previous to the expiration of the 

### time forredemption, or atleast sixty (60) days before he applies for a deed, serveupon 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 allcases where the postoffice address of the owner 

# .

# .. isunknown, the applicant shallpublish once 

### a week for two (2) successive weeks in a newspaper published inthe 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), 122Mont. 571, 208 P.2d 478. The court inLowery also stated that: "The giving of the notice 

### isjurisdictional 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 legallyissue." 122Mont. at580, 208 P.2d at483.With this inmind 

### we turn to the notice given in this case. Adkins firstattempted 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 inwhich taxes had lastbeen paid upon the property, listed Phillip Redeye as the record 

### titleowner and noted themailing address tobe: c/o Mrs. Geraldine Huey, 2400 Donovan, Bellingham, Washington. These notices 

### werereturned toAdkins marked "Moved 

# -- Not Forwardable." Adkins then published the statutory notice required by Section 84-4151, R.C.M., 1947 inthe "Western News" on February 10th and 17th, 1966. Adkins then proceeded toobtain 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 thatAdkins' failure toconduct such a search resulted indefective notice because Adkins' efforts atgiving notice completely excluded the minor, Marlin Duane Huey, from the notice process. The duty owed by a tax deed applicant for discovering alltrue owners of property and their correct addresses was recently discussed by thisCourt inMadden v. Zimmerman (1975), 166Mont. 285, 532 P.2d 414. InMadden 

### we stated that: "The statute (884-4151, R.C.M. 1947) sets forth the notice required by a petitioner for a tax deed, torequiremore 

### is not within the power of thisCourt. To require the petitioner tosearchother or alllegal records and to be on notice of alllegalpublications which may affect title to the property would be onerous.

"Therefore the burden must fall to the taxpayer tokeep the taxing authorities informed of his interest inthe land and his current address.

### " (citationomitted) 166 Mont. at 289-290, 532 P.2d at417. Applying this holding to the instant case, 

### itis clear that appellants had a duty tokeep 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 failedhe resorted to the statutorilypermissible mode of notice by publication. Wehold thatAdkins' 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 thatnotice by publication 

### is sufficient as to a minor's interestinreal property. Hardy

v. Beaty (1892), 84 Tex. 562, 19 S.W. 778; Wheeler v. Scully, etal. (1872. Ct. of App.), 50 N.Y. 666. 42 Am.Jur.2dI Infants, S197, provides inpart: "Moreover, the rules thatunknown claimants of property may be served by publication and that a judgment rendered against them 

### isvalid atleast to the extent that it 

### isinrem or quasi in

### rem apply to infant defendants." Therefore, 

### we hold Dave A. Adkins properly complied with allnecessary statutory requirements for obtaining 

### a tax deed and the deed issued by the Lincoln County Treasurer

### on May 4, 

### 1966 

### isvalid. The issue of adverse possession is moot.Appellants' allegationregarding the negligence of the attorneywho probated PhillipRedeye's 

### estate and who handled the guardianship proceedings for Geraldine Redeye was never raised inthe pleadings nor presented to the DistrictCourt. As

### previously stated, issuesmust be presented before the DistrictCourt and may not be raised for the first

### timeon appeal. Kearns v. McIntyre Const. Co. (1977), supra. Therefore, this Court declines toreview appellants' second issue. The judgment of the District Court 

### isaffirmed.

We Concur: