### No. 12670 IN

### THE SUPREME COURT OF 

### THE STATE OF MONTANA 

### 1974

THOMAS 

### L. MADDEN, 

### Administrator of the Estate of Grace G. 

### Madden, deceased, Plaintiff and Counter Defendant,

BERNARD J

# .ZIMMERMAN, 

### Defendant and Counter Claimant.

Appeal from: District Court of theFirst Judicial District, Honorable Gordon R. 

### Bennett, Judge presiding. Counsel of Record: For Appellant: C. W. 

### Leaphart, 

### Jr., argued, Helena, Montana For Respondent: 

### Small, Cumins and Hatch, Helena, Montana Gregory 

### A. Jackson argued, and CarlA. 

### Hatch,

appeared, Helena, Montana

Submitted: 

### November 22, 1974

Filed: 1 -7Mr. 

### Justice Gene B. 

### Daly delivered the Opinion of the Court.
This is 

### an appeal from a judgment entered in the district court, Lewis and Clark County, in a quiet titleactionbrought by Thomas L. Madden, inhis capacity as administrator of the estate of Grace G. 

### Madden, deceased, torecover property for the estate conveyed todefendant Bernard J. 

### Zimmerman by a tax deed. Plaintiff Madden appeals from a decree quieting titleindefendant Zimmerman. Grace G. 

### Madden died on September 

### 11, 1969. At

### the time of her death she was the owner of lots 24 through 32 inBlock 36, Lennox Addition tothe City of Helena. She left surviving three

sons: Lee Madden, James Madden and Thomas L. Madden. Thomas 

### L. Madden was appointed administrator of her estateon October 27, 1969. The address of the administrator indicated on allpapers was "1n care of C. W. 

### Leaphart, Jr., 

### Montana Club Bldg., Helena, Montana 59601". The residence of Thomas L. 

### Madden was Great Falls, Montana. An inventory and appraisement was filed for the estate on January 21, 1970, and the above described property was appraised at$9,000. The taxes on the property were delinquent for the years 1967, 1968, 1970 and 1971. The taxes were assessed inthename of Grace Madden inthe years 1967, 1971, and 1972 incare of Jerry I. 

### Madden, 1805 Joslyn, Helena, Montana. For the years 1968, 1969 and 1970 theywere assessed toher at 1823Highland, Helena, Montana. The properties were offered for tax saleby Lewis and Clark County on July 15, 1969; therewere no purchasers. The properties

were again offered for sale on July 16, 1969 and the propertieswere 

### struck off toLewis and Clark County, On 

### March 27, 1972, the county's certificatewas sold to defendant Bernard J. 

### Zimmerman for the bid price plus the taxes for the past threeyears. Within seven days of the receipt of the certificate, defendant made application for tax deed. The notice of application for tax deed was sent toGrace Madden's address as it 

### appeared on the 1972 records of the county treasurer, the assessor, county classification department and the county clerk and recorder. The letterwas returned to sender whereupon it

### was again mailed tothe same address and once again it

### was returned bearing a stamp of theUnited Statespost officewhich revealed Grace Madden's address unknown, and that she had moved and leftnoaddress. Defendant Zimmerman then caused tobe published notice of application for tax deed, once a week for two successiveweeks in the Independent Record, a newspaper published inHelena, Lewis and Clark County, Montana. The notice of applicationwas published April 

### 5 and 

### 12, 1972. Sixty-two days after the lastnoticewas published, Zimmerman applied for the deed and eight days later received it. The applicationwas supported by the filing of an affidavit of proof of service of noticewith the county clerk and recorder. Subsequent to the issuance of the tax deed, plaintiff commenced proceedings to sellthe properties and became aware that a tax deed had been issued to defendant Zimmerman. Thereafter plaintiff commenced an action to quiet the title tothe properties on February 

### 5, 1973. Hearing was held before the court, sittingwithout a jury, on June 28, 1973. Witnesses were called and testimony was taken. Chadwick Smith, Esq., former attorney for defendant, testified that allof the statutoryrequirements concerning application for tax deed were followed by Zimmerman. Mr. Lee Dickey, chief deputy treasurer of Lewis and Clark County, testified the address and the

owner of propertyaredetermined by the county treasurer's office by referring to itsrecords, which are taken from the classification department's records, which are in turn taken from the clerk and recorder's records. Verna Williams of the clerk and recorder's office testified that she was a representative of the office and was the custodian of allrecords. In addition, she testified that allrecords in regard to the tax deed were duly filed and recorded in that office. At the hearing alltestimony and documents mncerning the tax deed

were admitted by the court without objection. Thereafter the court entered itsjudgment in favor of defendant Zimmerman on November 2, 1973, finding that plaintiff Thomas L. Madden and heirs of Grace E. Madden had no right,title and interest

### in and to the properties in dispute. Following the entry of judgment,all documents concerning the tax deed were returned to and filed in the county clerk and recorder's office. Plaintiff Madden appeals the judgment and presents four issues

on appeal. We will discuss the first two issues together. Appellant argues that impropernoticewas given by respondent Zimmerman in his application for a tax deed. Section 84-4151, R.C.M. 1947, states that 

### 60 days before applying for a tax deed, the applicantmust give notice to the owner by registered mail.

11 

### Where the post office address of the owner is unknown the applicant shallpublih once a week for two 

### (2) successiveweeks in a newspaper published in the countywhere the property is situate,

### a notice substantially in the following form

# ** *." Respondent sent a registered letter to the address taken from the 1972records of the county treasurer. When the letterwas returned undelivered, itwas againmailed with return receipt requested;again it was returned undelivered marked "address unknown". Respondent thenpublished the required notice in the Independent Record once a week for two consecutiveweeks as required by section 84-4151,R.C.M. 1947,before applying for the tax deed. However,appellant argues that the address of the administrator could be determined,aswell as the addresses of the heirs of Grace Madden, from the estate file. Also notice to creditors of the estatewas published long before the application for tax deed, which should have put respondent on notice that the estatewas in probate. The statute sets forth the notice required by a petitioner for

a tax deed, to requiremore 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 publicationswhich may affect title to the propertywould be onerous. There are numerous land transactions which stand unrecorded in escrow for long periods of time,

sowhat may appear fair and equitable in this case by additional requirements,would over a long period of 

### timebecome an unequitable burden. Therefore the burden must fall to the taxpayer to keep thetaxing authorities informed of his interest inthe land and his current address. Section 84-508, R.C.M. 1947. Appellant was administrator of the estate for three years and gave no notice tothe taxing authorities nor made any attempt topay the taxes. The statement of this Court in Shaw v. City of Kalispell, 135Mont. 284, 293, 340 P.2d 523, quoting from Elliott

on Roads and Streets, 4thEd. V. 

### 1, 

### 5 363, pp. 420,421, would bear on responsibility of thosewho have an interest:

I' IWhere the statuterequires notice toowners of property, it 

### is sufficient, as a general rule, togive notice to thosewhose titles appear of record. This must ordinarilybe the rule inhighway cases aswell as inother cases, since there isno other method provided by law for ascertaining who are the owners of land, and if the owner by his own carelessness omits togive the legalnotice of his titlehe 

### is somuch infault asnot tobe entitled tobe heard toaver that he was not given notice of the proceedings taken toappropriate the land."' Appellant's third issue iswhether the creditors of Grace Madden's estate ought tobe leftwith no remedy, as the only opportunity for their claims tobe satisfiedwas from the sale of the assets of the estate. There areno creditors involved in the case before this Court and we willnot attempt to evaluate their claims in this Opinion. The statute, however, isquite clear as tothe titleconveyed under a tax deed. Section 84-4150, R.C.M. 1947, provides: "The deed issued pursuant to this act shallconvey to the grantee the absolute title to the lands described therein as of the date of the expiration of the period of redemption, free of allencumbrances and clear of any and all claims of allof said defendants to said action, and of allpersons claimingunder them, except the lien for taxes subsequently attached and other liens and assessments now specified and provided by law.'' If the creditors cannot bring themselves within the exceptions to section 84-4150, then they must turn to other assets of the estate inorder togain satisfaction of their claims. Appellant's final issue iswhether the owner's right of redemption was cut short by the application for the tax deed within seven days after the receipt of the tax certificate. He arguesthat such application truncated appellant's right of redemption as provided for in section q-4132, R.C.M. 1947. That section states: "A redemption of the property sold may be made by the owner, or any party having any interest inor lien upon such property, within thirty-six (36) months from the date of purchase, or atany time prior to the giving of thenotice and the application for a deed as provided in this act.11 The statuteprovides a 36 month redemption period from the date of the purchase of the land, and such redemption period may be extended further if the owner of the tax certificate fails toapply for a tax deed atthe end of that 36 month period. In fact, after that 36 month period the right of redemption 

### iscut off onlyby the application for the tax deed. Beckman Bros. v. Weir, 120Mont. 305, 184 P.2d 347. Here, the land was purchased July 16, 1969by Lewis and Clark County by tax certificate. That is the day the period of redemption began torun. Appellant, or any other person who had an interest intheproperty had 36 months from July 16, 1969, toredeem the property. The fact that respondent bought the tax certificate on March 27, 1972, is immaterial. ~espondent's application for a tax deed just seven days afterhe gained ownership of the certificate inno way prejudiced appellant's right of redemption. The redemption period, but for approximately three months, had already run 

### its

course. Appellant made no attempt toredeem the property, but commenced proceedings to quiet the titletothe properties on February 5, 1973, well after the final day of redemption. Therefore, appellant lost any right tothe property and the district court correctly quieted titleinrespondent. The judgment of the district court isaffirmed.

Justice 

## 1

### We Concur:

7 .' -------------'--------->----------- Chief Justice