No. 83-215 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

ELIZABETH L. LONG, 

Plaintiff and Appellant, 

CLIFTON E. DILLON, HARRIET L. RYAN, 

GRANITE COUNTY TREASURER, and the 

GRANITE COUNTY CLERK & RECORDER, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Granite, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry A. Wallace, Missoula, Montana 

For Respondent: 

James Bartlett; Hash, Jellison, O'Brien & Bartlett, 

Kalispell, Montana 

J. Allen Bradshaw, Philipsburg, Montana 

Submitted on Briefs: November 10, 1983 

Decided: March 29, 1934 

Filed: MAR 2 3 1984 

Clerk 
Mr. Justice John C. Sheehy delivered t-he Opinion of the 

Court. 

Elizabeth L. Long (Long) appeals from a summary judgment 

against her entered in the District Court, Third Judicial 

District, Granite County, on her claim to set aside and 

cancel a tax deed, and for other relief. 

Robert G. Mitchell and Niola M. Mitchell recorded a 

warranty deed in June, 1971 in Granite County, by which they 

acquired record title to real property described for brevity 

as Lot 13 in Ranch Creek Meadows Two in Granite County. 

The Granite County Treasurer assessed t-he real property 

on the County Assessment books for the year 1975 in the name 

of R. G. Mitchell, c/o Gordon L. and Elizabeth L. Long, and 

levied taxes for that year in the sum of $48.04. 

The taxes were not paid and the real property was sold 

at a tax sale. There being no bidder at the tax sal-e, the 

real property was struck off to Granite County as purchaser 

on August 18, 1976 for the delinquent taxes. 

On June 15, 1978, a quit claim deed was recorded with 

the County Clerk and Recorder in Granite County from Gordon 

I,. Long to Elizabeth L. Long. On June 15, 1979, the real 

property still remained unredeemed from the tax sale. At 

that time, Clifton E. Dillon paid the Treasurer of Granite 

County the amount for which the real property was sold to 

Granite County, together with all subsequent delinquent 

taxes, penalties, costs and interests, amounting in all to 

the sum of $366.66, whereupon the County Treasurer of Granite 

County assigned all of the county's interest in the real 

property to Dillon. 

On July 2, 1979, Dillon prepared and mailed a notice of 

application for tax deed, substantially in compliance with 
section 15-18-202, MCA, addressed to "R. G. Mitchell, c/o 

Gordon L. and Elizabeth L. Long". The notice was enclosed in 

an envelope and addressed to "R. G. Mitchell, c/o Gordon L. 

and Elizabeth L. Long, Rte. 1, Box 1465, Clinton, Montana, 

59825" by certified mail, with returned receipt requested. 

The post office returned the unopened letter to Dillon with a 

notation thereon "Addressee Unknown." 

The affidavit of Long indicates that she received in the 

mail the certified letter which enclosed the notice, but that 

she did not open it because it was certified and because it 

was addressed to R. G. Mitchell instead of to Long. 

After the certified letter was returned, Dillon caused 

to be published in the Philipsburg Mail, a newspaper 

published in Granite County, a notice of application for tax 

deed substantia.lly in compliance with section 15-18-202 (3) , 

MCA, except that the notice is undated. The first 

publication occurred on July 12, 1979. 

On September 11, 1979, Clifton Dillon executed and filed 

with the Granite County Treasurer an affidavit of service of 

notice of application for tax deed (see section 15-18-202(5), 

and 204, MCA) which we quote in pertinent part: 

"Clifton Dillon, Being first duly sworn, deposes 

and says: 

That Notice of Application for Tax Deed on the 

following described property, to-wit: [here 

follows a description of the real pro pert.^] was 

served upon R. G. Mitchell & Gordon & Elizabeth 

Long, record owner of said land, by placing a copy 

of said Notice in a registered letter addressed 

with the last known mailing address of said R. G. 

Mitchell & Gordon & Elizabeth Long, postage 

prepaid, and mail-ed at the [Jnited States Post 

Office in Kalispell on July 2, 1979, which date was 

sixty (60) or more days prior to the date of 

application for a Tax Deed on said property;. . ." 

The affidavit as aforesaid, together with the unopened 

certified mail envelope was filed with the County Treasurer, 
who on September 11, 1979, issued a tax deed for the real 

property to Clifton E. Dillon in the manner prescribed in 

section 15-18-205, MCA. 

On January 21, 1981, Long filed a complaint against 

Dillon, the Granite County Treasurer and the Granite County 

Clerk and Recorder, alleging she had sought to redeem the 

property, but had been refused by the defendant County 

Treasurer. She sought cancellation of the tax deed, and 

damages for defamation of title to the land and for mental 

and emotional distress, plus attorneys fees. 

On March 29, 1982, a warranty deed from Robert G. 

Mitchell and Niola M. Mitchell was recorded deeding title to 

the real property to Gordon L. Long and Elizabeth L. Long, 

the plaintiff herein. 

Dillon moved the District Court for a summary judgment 

of dismissal. After considering the various affidavits and 

records on file the District Court granted the motion, 

relying on our case of Adkins v. Redeye (1981), 196 Mont. 

114, 639 P.2d 485. The District Court noted that all tax 

notices, which Long was aware were due and payable yearly, 

had been received by her a.nd mailed in the same manner and 

form as the notice of application for tax deed which she had 

declined to accept. Judgment of dismissal was entered based 

on the order granting summary judgment and this appeal 

ensued. 

The single issue to be determined by us is whether Long, 

as an owner of the property here involved was properly served 

by Dillon with notice of his application for a tax deed. 

In pertinent part, section 15-18-202, MCA, provides: 

"Notice of application --- for tax deed (1) The 

property sold for delinquent taxes or 

his assignee must. . . at least 60 days before he 
applies for a deed, serve upon the owner of the 

property purchased, if known, any purchaser of the 

property under contract for deed, if known,. . . a 

written notice stating that said property or a 

portion thereof has been sold for delinquent taxes 

giving. . . the time. . . when the purchaser will 

apply for a tax deed. . ." 

Unless such notice is given to the owner of the real 

property, the time for redemption continues indefinite]-y . 

Section 15-1 8-202 (1) ; Madden v. Zimmerman (1975) , 166 Mont. 

285, 291, 532 P.2d 414; Beckman Brothers v. Weir (1947), 120 

Mont. 305, 184 P.2d 347. 

In each county, an assessment book must be kept in which 

appears the names of the person to whom the property is 

assessed. Section 15-8-701, MCA. If the owners are absent 

or unknown, the assessment is made to unknown owners. 

15-8-501, MCA. Once land is listed in the assessment. hook, 

it need not be described a second time, but any person 

claiming the same and desiring to be assessed therefor may 

have his name inserted with that of the person to whom such 

land is assessed.. Section 15-8-702, MCA. In the usua.1 

course it seems that the names a.nd addresses of owners of the 

property are determined by the County Treasurer's office by 

referring to its records, which are ta.ken from the 

classification department's records, which are in turn taken 

from the Clerk and Recorder's records. (See Madden v. 

Zimmerman, supra, 166 Mont. at 288, 532 P.2d at 416). 

We have held that the burden falls to the tax payer to 

keep the taxing authorities informed of his interest in the 

land and his current address. Madden v. Zimmerman, supra, 

166 Mont. at 289-90, 532 P.2d at 417. 

In Adkins v. Redeye, supra, the real property was 

assessed to Phillip Redeye, c/o Mrs. Geraldine Huey, 2400 
Donovan, Rellingham, Washington. Adkins mailed a notice of 

application for tax deed to Redeye at the address shown on 

the assessment list and the notices were returned to Adkins 

marked "Moved - Not Forwardable." Adkins then published the 

statutory notice and proceeded to obtain the tax deed to the 

real property. It wa.s contended in the case that if Adkins 

had searched the probate judgment book, he would have found 

an order and decree of distribution which would have revealed 

the true owners of the property. This Court held, following 

the decision in Madden v. Zimmerman, supra, that the 

applicant for a tax deed is not required to search all of the 

legal records and to be on notice of all legal publications 

that may affect title to the property. 

While Adkins v. Redeye, supra, might seem to apply to 

the case at bar, there is a substantial difference. In his 

affidavit to procure the tax deed, Dillon stated that he had 

served notice of application for tax deed upon "R. G. 

Mitchell. and Gordon and Elizabeth L. Long" by mail. While he 

attempted to serve R. G. Mitchell by mail, it is not accurate 

to state that he had so served Gordon and Elizabeth Long. 

The command of section 15-18-202, MCA, is that a notice 

of application for tax deed must be served upon the owner of 

the property purchased, "if known." The statute is not 

limited to the names appearing on the assessment list, though 

we have held that a purchaser need not go beyond the records 

of the County Treasurer in determining the owner of property 

in cases such as this. Madden, supra. 

In Fariss v. Anaconda Copper Mining Company ( D.C. Mont. 

1940), 31 F.Supp. 571-, Judge Pray noted that the term "owner" 

in a like statute included the plural if there is more than 

one owner. He also noted our holding in Small v. Hull 
(1934), 96 Mont. 525, 32 P.2d 4, that such a statute, so far 

as it attempts to bar the owner's right to attack a deed 

issued without notice of the appl-ication therefore, amounts 

to a taking of property without due process of law. 

When as here, the applicant for the tax deed recites in 

his affidavit that he has served by mail an owner of the 

property, and such statement is not accurate, the applicant's 

tax deed issued based on the affidavit is void and of no 

effect. We held in Lowery v. Garfield County (1949), 122 

Mont. 571, 208 P.2d 478 that the giving of a notice to an 

owner is jurisdictional and unless the requirements of the 

law in respect to such notice are complied with a tax deed 

may not legall-y issue. 

In reaching this decision, we give no effect to the deed 

to Elizabeth J Lona from Gordon L. Long since that 

instrument was outside of the chain of title. Our decision 

is based upon the inaccuracy of Dillon's affidavit that he 

had served an owner by mail when in fact such service had not 

occurred. Under Lowery, supra, a tax deed based on such an 

affidavit may not stand. 

A second issue, raised by Dillon on appeal was that 

Long's appeal here was not timely. The contention is based 

on whether the 30 day period for appeal or the 60 day period 

provided when an officer or agency of a political subdivision 

is involved, is applicable. Rule 5, M.R.App.Civ.P. Dil-Ion 

contends there was no real controversy between Lonq and the 

officers of Granite County and therefore the 30 day 

limitation ought to apply. However, Rule 5 does not admit of 

such an exception. Since an officer or agency of a political 

subdivision is a party to this action, an appellant has 60 
days from the service of notice of entry of judgment in which 

to file notice of appeal. That occurred here. 

This cause is affirmed in part and reversed in part. We 

affirm the order and judgment of the District Court granting 

summary judgment and di-smissing the complaint against the 

officers of Granite County. We reverse the summary judgment 

insofar as Long is concerned, and remand the cause to the 

District Court for further proceedings consistent with this 

opinion. 

TnJe Concur: 

'3- I 

f)i'- - L 3, ?/d6L -/ ,LLc+F(( 

Chief Justice 

Justices 
Mr. Justice Frank B. Morrison, Jr. dissents as follows: 

I dissent. The majority bases its decision on an 

inaccurate statement in Dillon's affidavit of service. The 

majority concludes that because of this defect a tax deed 

issued based on the affidavit is void. This rationale avoids 

the real issue in this case: Who must a tax deed applicant 

notify under section 15-18-202, MCA? 

The statute specifically and exclusively sets forth the 

steps required of a tax deed applicant to notify the property 

owner. The statute requires service of notice "upon the 

owner of the property purchased, if known." "The owner" 

might mean the legal owner, the equita.ble owner, the owner as 

disclosed by the records of the Clerk and Recorder, any of 

the above, or - all of the above. 

I would hold that "owner" as used in this statute means 

the person appearing on the assessment list as the owner of 

the property. 72 Am. Jur. 2d 220, S924. 

The reasons for such a construction are fourfold. 

First, the phrase "if known" in subsection (1) of the statute 

indicates that the tax deed applicant does not have a burden 

to divine equitable owners where their interests are unknown. 

Second, subsection (2) of the statute requires that the 

"owner" is to be notified at the address disclosed by the 

nortgage records. I infer that the owner to be notified is 

the one who uses that address. Third, subsection (2) 

indicates that notification of any known owner is sufficient 

where the property is unoccupied. Thus, notification of an 

equitable owner should not be required in addition to 

notification of the record owner. 

Finally, cases which have discussed the duty owed by tax 

deed applicants for discovering owners entitled to notice, 

have limited that duty: 
"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. l1 (emphasis added) 

Madd.en v. Zirnmerman (1975), 166 Mont. 285, 289-90, 532 ~.2d 

414, 417. Adkins v. Redeye (1981), 196 Mont. 114, 120, 639 

Dillon gave the statutory notice with the proper dates 

inserted, by certified mail to the owners of the property as 

disclosed by the record, utilizing the address of record, 

namely, R. G. Mitchell, c/o Gordon L. and Elizabeth J,ong, 

Route 1, Box 1465, Clinton, Montana, 59825, and thereby 

satisfied the statutory written notice requirement. 

Dillon satisfied all requirements of an applicant for 

tax deed as a matter of law. I would therefore find the 

decision of the District Court granting summary judgment in 

favor proper.