No. 81-511 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

YELLOWSTONE INVESTMENT AND 

DEVELOPMENT CO. , INC . , and 

EDWARD L. BOND, 

Plaintiffs and Respondents, 

YELLOWSTONE COUNTY, MEFCO CO., 

RAYMOND WEBER and BERNICE M. FRIEZ, 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Robert Wilsan, Judge presiding. 

Counsel of Record: 

For Appellants: 

Harold F. Hanser, County Attorney, Billings, Montana 

Gary E. Wilcox, Billings, Montana 

Jones, Jones and Work, Billings, Montana 

For Respondents: 

Stephens and Cole, Billings, Montana 

Submitted on briefs: April 15, 1982 

Decided: November 24, 1952 

Filed: NOV 2 i; 1!l82" 
!4r. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Yellowstone County appeals from a summary judgment 

entered against it in the District Court, Thirteenth Judicial 

District, Yellowstone County. The summary judgment determined 

that certain tax deeds obtained by the county were invalid. 

We affirm the determination of the District Court. 

Edward L. Bond was the record owner of Lots 1, 6, 7 and 

8 of Block 4 of Spring Valley Subdivision, Yellowstone 

County, Montana, in the month of October 1979. Back taxes 

of $4,338.G4 were due for Lot 1, and $4,461.04 for Lot 8. 

On August 22, 1979, the county clerk of Yellowstone County 

made written notice of application for tax deed for the 

lots, which written notice indicated that Bond's right of 

redemption would expire on October 22, 1979, and that Yellowstone County as purchaser would apply for tax deeds on 

October 23, 1979. 

On August 23, 1979, the county clerk mailed copies of 

the notice of application for tax deed by certified mail, in 

separate envelopes, one to Eond, addressed to him at 490 

Indian Trail Road, Billings, Montana, and another notice to 

L. A. Builders, Inc., at 206 N. 29th Street, Billings, 

Montana. The envelope addressed to L. A. Builders was 

delivered on August 24, 1979, and the county received a receipt 

acknowledging the receipt by L. A. Builders, Inc. of the 

notice. However, the certified mail envelope addressed to 

Bond at 490 Indian Trail Road was returned "unclaimed" by 

the post office. 

At the same time as the mailings, the county clerk 

caused publication in the Laurel Outlook, a newspaper published 

in Laurel, Montana, of a notice of application for tax deed 
against L. A. ~uilders, Inc. and Edward L. Bond, which 

written notices were printed and published on August 22 and 

August 29, 1979. 

On October 11, 1979, Edward L. Bond deeded his interest 

in the real estate here in question to Yellowstone Investnent 

and Development Co., Inc., by filing deeds of record in the 

office of the county clerk of Yellowstone County. 

On October 23, 1979, the county clerk executed a b~ritten 

affidavit and proof of service in connection with the county's 

application for tax deeds. In the affidavit, the county 

clerk recited that notice of application for tax deeds was 

mailed to Edward L. Bond at 490 Indian Trail Road, in Billings, 

Montana, and that the letter addressed to him had been 

returned unclaimed. The printed portion of the affidavit 

recited "that the addresses used in mailing all the above 

letters are the best and latest addresses obtainable for the 

said persons, as disclosed by the County records of Yellowstcne 

County, Montana." The printed portion of the affidavit also 

recited that the post office address of (the addressee's 

name is left blank) was unknown and that therefore the 

notice of application for tax deed had been served by 

publication. 

On the sane day, October 23, 1979, the county treasurer 

issued tax deeds to the county for the lots. 

On December 20, 1979, Yellowstone County sold its 

interest in Lot 1 and Lot 8 of Block 4, Spring Valley subdivision, 

to Mefco Company, in Billings, Montana. 

Yellowstone County on December 19, 1979, also sold Lot 

7, Block 4, to Raymond Weber, and Lot 6, Block 4, to Bernice 

M. Friez. 

On January 10, 1980, Bond and Yellowstone Investment 

and Development Company, as plaintiffs, filed a complaint in 
the ~istrict Court of Yellowstone County, attacking the 

issuance of the tax deeds to the county as invalid, essentially 

on the ground that the notices of application for tax deeds 

were insufficient. 

Both defendants Weber and Friez did not appear in the 

action, and eventualiy default judgment was taken against 

them. All of the remaining parties moved the District 

Court for surrmary judgment. 

Each of the parties submitted affidavits in support of 

their respective motions for surrrnary judgment. Yellowstone 

and Mefco relied on the affidavits of the county treasurer 

and the county clerk, who supplied from the records in 

their offices the written instruments to which we have above 

ref erred. 

Bond and Yellowstone Investment and Development Co., 

Inc. in support of their motion for summary judgment, supplied 

the District Court with copies of their tax statements for 

1979, each of which showed that the address of Edward L. 

Bond was 347 Moccasin Trail in Billings, Montana. Bond and 

Yellcwstone Investment also relied on an affidavit of James 

L. Carbor,e, to the effect that he inspected the records in 

the Yellowstone County clerk and recorder's office of many 

deeds and mortgages and could not find Bond's address listed; 

that he had insp~cted the Yellowstone County treasurer's office 

for the tax statements for the years 1978 and 1979 and found 

the address of Edward L. Bond to be 347 Moccasin rail, 

Billings, Montana; that he inspected the records of the 

Yellowstone County assessor's office for 1978 and 1979, 

where Bond's address was alsc listed as 347 Moccasin rail, 

Billings, Montana. 

An affidavit of Robert L. Stevens, Jr., the attorney 

for the plaintiffs, was also relied on, which essentially 
recited that Bond's Moccasin Trail address was available to 

the county clerk within a few feet of his office. 

Edward L. Bond also supplied to the District Court his 

affidavit to the effect that he had accidentally discovered 

the pending application for tax deed in late September or 

early October, 1979; that he had consulted an attorney and 

had learned from him that the county could not secure a tax 

deed until proper notice had been given; that he had gone to 

the clerk and recorder's office to determine what he must do 

to remove the property from jeopardy and that the clerk and 

recorder would not accept tender of the taxes, interest and 

penalties, hut also required the payment in full of all 

unpaid special improvement district assessments. 

On July 22, 1981, the District Court entered an order 

granting a summary judgment in favor of Bond and Yellowstone 

Investment and Development Co., Inc. and denying the motion 

of Mefco Co. for summary judgment. 

On August 3, 1981, the District Court entered judgment 

in favor of the plaintiffs requiring the plaintiffs to 

tender to the county all real estate taxes, interest and 

penalties on the property, and that upon the tender and 

receipt of those moneys, the tax deeds were to be canceled and 

declared null and void. The default judgment against Weber 

and Friez was entered at the same time. 

Following the judgment, Mefco Co. and Yellowstone 

County moved the District Court for a new trial. In support 

of their motion for a new trial, they provided the District 

Court with copies of three deeds dated October 11, 1979, 

between Edward L. Bond, as grantor and Yellowstone Investment 

and Development Co., Inc. as grantee, relating to properties 

other than those involved in the tax deeds, in which deeds 
the address of Edward L. Bond is shown to be 490 1ndian 

Trail, Billings, Montana. The attorney for Bond presented 

the District Court with a counteraffidavit to the effect 

that the Indian rail address was Bond's address when the 

deeds were prepared in the early summer of 1979, and not 

when the deeds were filed in October of 1979. 

The District Court denied the motion for new trial. 

YelLowstone County only appeals from the judgment and the 

denial of the motion for new trial. 

On appellate review of the validity of tax deeds, 

certain rules guide us. Notice of application of tax deed 

to the owner, whether by mail or publication, is jurisdictional 

to the validity of the tax deed. Sanborn v. Lewis and Clark 

County (1941), 113 Mont. 1, 120 P.2d 567. Service by publication 

of a notice of application for tax deed is valid only when 

the address of the owner is unknown. Section 15-18-202(3), 

MCA. Every.statutory step in the application for a tax 

deed must be fully complied with. Perry v. !'laves (1951), 

125 Mont. 215, 233 P.2d 820; King v. Rosebud County (19811, 

- Mont. , 631 P.2d 711. The requirement that notice 

for application be given applies to counties applying for 

tax deeds. In Lowery v. Garfield County (1949), 122 Mont. 

571, 580, 208 P.2d 478, we said: 

"The statute requiring what notice shall be given 

and the filing of the affidavit are a limitation 

upon the power of the county treasurer to issue 

the tax deed and render void any deed issued 

by him unless and until the statutory requirements 

have been fully complied with. His authority to 

execute the deed must be shown in and appear upon the 

face of the affidavit. 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. 

The validity of the tax deed depends upGn compliance 

with the statute authorizing its issuance and a 

tax deed issued by the county treasurer is void where 

the notice required by the statute is not given. 

(Citing cases. ) " 
Section 15-18-202(2), MCA, provides that a written 

notice of application for tax deed shall be given to the 

owner by registered or certified letter addressed to him at 

the post office address of said owner "as disclosed by the 

mortgage records in the office of the county clerk and 

recorder." Here the affidavit of Carbone establishes that 

there was no post office address for Bond listed on any 

mortgage on file in the county clerk's office. The records 

in the county treasurer's office and the county assesscr's 

office shcw Bond as residing at 347 Moccasin Road. His 

assessment notices and tax notices for the years in question 

were mailed to him at that address. The county contends, 

however, that the county clerk, when he made his affidavit 

on October 23, 1979, for the issuance of the tax deeds, 

could rely on the deeds which were filed on October 11, 

1979, and upon the Polk's Billings City Directory, each of 

which showed Bond's address to be 490 Indian Trail. Aside 

from the fact that the October 11, 1979 deeds and the material 

from Polk's Billings City Directory were not presented to 

the District Court until motion was made for new trial, 

there is nothing in the record, either at the time of summary 

judgment, or at the denial of the motion for new trial to 

refute that the post office address of Bond on August 22 and 

23, 1979, was on Moccasin Road. If that were not the true 

address of Bond on August 22 or 23, 1979, it was the duty of 

the county, when the motions for summary judgment were pending, 

to raise or demonstrate the existence of a genuine issue of 

material fact. The District Court is not required to anticipate 

proof to establish a material substantive issue of fact. 

Larry C. Iverson v. Bouma (1981), Mont. - , 639 P.2d 
47, 38 St.Rep. 1911; State ex rel. Burlington Northern v. 

District Court (1972), 159 Mont. 295, 496 P.2d 1152. 

The county also contends that since the letter to Bond 

was returned unclaimed, his address then became "unknown" 

and therefore service by publication was allowed. Here the 

record before the District Court at the time of the sumnary 

judgment showed that the Indian Trail address was not Bond's 

post office address at that time. The return of the letter 

unclaimed is not a sufficient ground upon which the county 

could rely to contend that Bond's address was "unknown" even 

though the affidavit and proof of service submitted by the 

county clerk to the county treasurer for the issuance of the 

tax deeds recites that the addresses used in mailing the 

letters were the "best and latest addresses obtainable for 

said persons, as disclosed by the county records of Yellowstone 

County, Montana." This obviously was not the case, for the 

records of the county treasurer and the county assessor each 

showed Bond's true post office address on the date of the 

mailing of the notice. The publication, therefore, of the 

notice of application for tax deed by the county can have no 

legal effect here. The conclusion recited by the county clerk 

in his affidavit that Bond's post office address was unknown 

is obviously not in accord with easily ascertainable facts. 

However, the county also contends that under Bond's 

affidavit, he had actual notice of the pending tax title 

proceedings, and therefore any invalidity of the service of 

notice upon him does not disturb the legal effect of the tax 

deeds issued by the county. That contention overlooks the 

specific jurisdictional provisions of section 15-18-202(2), 

MCA, that notice be delivered to the owner by registered or 

certified mail where his post office address is known, and 
that until such service has been made to a known post office 

address, under section 15-18-202(1), MCA, the owner of the 

property has the right of redemption indefinitely "until 

such notice has been given." The abortive attempt by the 

county to serve Bond by mail at 490 Indian Trail did not, 

and has not yet, foreclosed Bond's right to redeem the real 

property. 

When the District Court granted summary judgment in 

this case, the record before it, based on the affidavits and 

other materials submitted, was clear that the post office 

address of Bond was 347 Moccasin Road and not at 490 Indian 

Trail at the time of notice and application for tax deed. It 

was not until the parties moved for a new trial after the 

summary judgment that the deeds of October 11, 1979, and the 

material in Polk's Billings City Directory were presented to 

the court. In making their motion for a new trial, the county 

did not contend that the new material was "newly discovered 

evidence" as the basis for its motion. If it had, because 

the "new evidence" was at all times available to the county, 

and perhaps in its possession, the motion for the neT7 evidence 

would have to be denied on that ground. Kartes v. 

Kartes (1977)' 175 Mont. 210, 573 P.2d 191. lloreover, 

the county does not contend, even now, that there was a fact 

issue as to the true post office address of Bond. The 

county relies on its contention that the Indian Trail address 

was the proper address for service of the notice based on 

the record as we have shown it here. On that ground, the 

county cannot prevail. 

Accordingly, the surrmary judgment granted by the ~istrict 

Court is affirmed. 
We Concur: