No. 83-215 IN THE SUPREME COURTOF THE STATE OF MONTANA 1984

ELIZABETH L. LONG, Plaintiffand Appellant,

CLIFTON E. DILLON,HARRIETL. RYAN, GRANITE COUNTY TREASURER,and the GRANITE COUNTYCLERK & RECORDER, Defendantsand Respondents.

APPEAL FROM: District Court of theThird JudicialDistrict, In and for the County of Granite, TheHonorable Robert J. Boyd,Judgepresiding.

COUNSELOF RECORD: ForAppellant: TerryA. 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: 

# MAR23

## 1984

ClerkMr. Justice John C. Sheehy delivered t-he Opinion of the Court.
ElizabethL. Long (Long) appealsfrom a summary judgment against her entered in the District Court, Third Judicial District, Granite County, on her claim to set aside and cancel a taxdeed, and forotherrelief. Robert G. Mitchell and Niola M. Mitchell recorded a warranty deed inJune, 1971inGranite County, by which they acquired record title torealproperty described forbrevity
asLot 13inRanch CreekMeadows Two inGraniteCounty. The Granite County Treasurer assessed t-herealproperty
on the County Assessment books for theyear 1975 in thename of R. G. Mitchell, c/o Gordon L. and Elizabeth L. Long, and levied taxes forthatyear inthe sum of $48.04. The taxes were not paid and the real property was sold at a tax sale. There being no bidder atthe tax sal-e, the real property was struck off to Granite County aspurchaser
onAugust 18, 1976 forthedelinquent 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 theCounty Treasurer of Granite County assigned all of the county's interest in the real property toDillon. 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. Thepost office returned the unopened letter to Dillonwith a notation thereon "AddresseeUnknown." The affidavit of Long indicates that she received in the mail the certified letterwhich 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.llyin 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,CliftonDillon 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) whichwe quote in pertinentpart: "Clifton Dillon, Being first duly sworn, deposes and says: ThatNotice of Application forTaxDeed 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 inKalispell on July 2, 

### 1979, which datewas 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 envelopewas 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 emotionaldistress,plus attorneys fees. On March 29, 

### 1982, a 

### warranty deed from Robert G. 

### Mitchell and Niola M. Mitchellwas recorded deeding title to the real property to Gordon L. Long and Elizabeth L. Long, the plaintiffherein. 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.ndmailed in the same manner and form as the notice of application for tax deed which shehad declined to accept. Judgmentof dismissalwas entered based
on the order granting summary judgment and this appeal ensued. The single issue tobe determined by us iswhether Long,
as an owner of the property here involvedwasproperly 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 heapplies 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 15-18-202(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. Ineach county,an assessmentbook must be kept inwhich 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.ndaddresses 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. Itwa.scontended 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 thatmay affect title to theproperty. While Adkins v. Redeye, supra, might seem to apply to the case at bar, there is a substantialdifference. 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 serveR. G. Mitchellby 

### mail, it isnot 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 thenames appearingon 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. InFarissv. Anaconda Copper Mining Company ( 

### D.C. Mont. 1940), 31 

### F.Supp. 571-,

### JudgePray noted that the term "owner" in a like statute included the plural if there ismore 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-icationtherefore, amounts to a taking of propertywithout 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 isnot 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-yissue. 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 ownerby mail when in fact such servicehad 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 apolitical 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 apolitical subdivision is a party to this action, an appellant has 60

### days from the service of notice of entry of judgment inwhich to file notice of appeal. That occurred here. This cause is affirmed inpart and reversed inpart. We affirm the order and judgment of the DistrictCourt 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'-

# -L3, ?/d6L -/ 

## ,LLc+F(( Chief Justice

JusticesMr. 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 issuedbased on the affidavit isvoid. 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 theproperty
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.bleowner, the owner as disclosed by the records of the Clerk and Recorder,

### any of the above,or 

### - all of the above. Iwould hold that "owner"as used in this statutemeans 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 "ifknown"in subsection (1)of the statute indicates that the tax deed applicantdoes not have a burden to divine equitable owners where their interestsare 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 affecttitletotheproperty would be onerous. 

# . . Therefore the burden must fall tothetaxpayer tokeep thetaxingauthorities informed of his interest in the land and his 

### --- currentaddress. 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 certifiedmail tothe owners of theproperty 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 satisfiedthe statutorywritten noticerequirement. 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.