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 the First 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 Carl A. Hatch, 

appeared, Helena, Montana 

Submitted : November 22, 1974 

Filed : 1 -7 
Mr. 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 title action brought by 

Thomas L. Madden, in his capacity as administrator of the estate 

of Grace G. Madden, deceased, to recover property for the estate 

conveyed to defendant Bernard J. Zimmerman by a tax deed. Plaintiff 

Madden appeals from a decree quieting title in defendant Zimmerman. 

Grace G. Madden died on September 11, 1969. At the time 

of her death she was the owner of lots 24 through 32 in Block 36, 

Lennox Addition to the City of Helena. She left surviving three 

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

Madden was appointed administrator of her estate on October 27, 

1969. The address of the administrator indicated on all papers 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 in the name of 

Grace Madden in the years 1967, 1971, and 1972 in care of Jerry I. 

Madden, 1805 Joslyn, Helena, Montana. For the years 1968, 1969 

and 1970 they were assessed to her at 1823 Highland, Helena, Montana. 

The properties were offered for tax sale by Lewis and Clark 

County on July 15, 1969; there were no purchasers. The properties 

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

struck off to Lewis and Clark County, On March 27, 1972, the 

county's certificate was sold to defendant Bernard J. Zimmerman for 

the bid price plus the taxes for the past three years. Within seven 

days of the receipt of the certificate, defendant made application 

for tax deed. 

The notice of application for tax deed was sent to Grace 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 letter was returned to sender whereupon it was 

again mailed to the same address and once again it was returned 

bearing a stamp of the United States post office which revealed 

Grace Madden's address unknown, and that she had moved and left no 
address. 

Defendant Zimmerman then caused to be published notice of application for tax deed, once a week for two successive weeks in the 

Independent Record, a newspaper published in Helena, Lewis and 

Clark County, Montana. The notice of application was published 

April 5 and 12, 1972. Sixty-two days after the last notice was 

published, Zimmerman applied for the deed and eight days later 

received it. The application was supported by the filing of an 

affidavit of proof of service of notice with the county clerk and 

recorder. 

Subsequent to the issuance of the tax deed, plaintiff commenced 

proceedings to sell the properties and became aware that a tax deed 

had been issued to defendant Zimmerman. Thereafter plaintiff 

commenced an action to quiet the title to the properties on February 

5, 1973. 

Hearing was held before the court, sitting without a jury, on 

June 28, 1973. Witnesses were called and testimony was taken. 

Chadwick Smith, Esq., former attorney for defendant, testified 

that all of the statutory requirements 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 property are determined by the county treasurer's office 

by referring to its records, 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 all records. In addition, she testified that all records in 

regard to the tax deed were duly filed and recorded in that office. 

At the hearing all testimony and documents mncerning the tax deed 

were admitted by the court without objection. 

Thereafter the court entered its judgment 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 improper notice was 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 applicant must give notice to the owner by registered mail. 

11 Where the post office address of the owner is unknown the applicant shall publih once a week for two (2) successive weeks in a 

newspaper published in the county where the property is situate, a 

notice substantially in the following form * * *." 

Respondent sent a registered letter to the address taken from 

the 1972 records of the county treasurer. When the letter was 

returned undelivered, it was again mailed with return receipt requested; again it was returned undelivered marked "address unknown". 

Respondent then published the required notice in the Independent 

Record once a week for two consecutive weeks 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, as well as the addresses of the heirs of Grace 

Madden, from the estate file. Also notice to creditors of the 

estate was published long before the application for tax deed, which 

should have put respondent on notice that the estate was in probate. 

The statute 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. There are numerous land transactions which stand unrecorded in escrow for long periods of time, 

so what may appear fair and equitable in this case by additional 

requirements, would over a long period of time become an unequitable 

burden. Therefore the burden must fall to the taxpayer to keep the 
taxing authorities informed of his interest in the 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 to the taxing authorities nor made any attempt 

to pay the taxes. The statement of this Court in Shaw v. City of 

Kalispell, 135 Mont. 284, 293, 340 P.2d 523, quoting from Elliott 

on Roads and Streets, 4th Ed. V. 1, 5 363, pp. 420,421, would 

bear on responsibility of those who have an interest: 

I' I Where the statute requires notice to owners of 

property, it is sufficient, as a general rule, 

to give notice to those whose titles appear of 

record. This must ordinarily be the rule in highway cases as well as in other cases, since there 

is no other method provided by law for ascertaining 

who are the owners of land, and if the owner by his 

own carelessness omits to give the legal notice of 

his title he is so much in fault as not to be entitled 

to be heard to aver that he was not given notice of 

the proceedings taken to appropriate the land."' 

Appellant's third issue is whether the creditors of Grace 

Madden's estate ought to be left with no remedy, as the only 

opportunity for their claims to be satisfied was from the sale of 

the assets of the estate. There are no creditors involved in the 

case before this Court and we will not attempt to evaluate their 

claims in this Opinion. The statute, however, is quite clear as 

to the title conveyed under a tax deed. Section 84-4150, R.C.M. 

1947, provides: 

"The deed issued pursuant to this act shall convey 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 all encumbrances and clear of any and all 

claims of all of said defendants to said action, and of 

all persons claiming under 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 

in order to gain satisfaction of their claims. 

Appellant's final issue is whether 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 argues 
that 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 in or lien 

upon such property, within thirty-six (36) months from 

the date of purchase, or at any time prior to the giving 

of the notice and the application for a deed as provided 

in this act. 11 

The statute provides 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 to apply 

for a tax deed at the end of that 36 month period. In fact, after 

that 36 month period the right of redemption is cut off only by the 

application for the tax deed. Beckman Bros. v. Weir, 120 Mont. 305, 

184 P.2d 347. 

Here, the land was purchased July 16, 1969 by Lewis and Clark 

County by tax certificate. That is the day the period of redemption 

began to run. Appellant, or any other person who had an interest 

in the property had 36 months from July 16, 1969, to redeem 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 after he gained ownership of the certificate 

in no way prejudiced appellant's right of redemption. The redemption 

period, but for approximately three months, had already run its 

course. Appellant made no attempt to redeem the property, but 

commenced proceedings to quiet the title to the properties on 

February 5, 1973, well after the final day of redemption. Therefore, 

appellant lost any right to the property and the district court 

correctly quieted title in respondent. 

The judgment of the district court is affirmed. 

Justice 1 
We Concur: 

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Chief Justice