No. 82-380 

IN THE SUPREP4E COURT OF THE STATE OF MONTANA 

1983 

JAMES E. EDWARDS AND GERALD A. 

STERNAD, 

Plaintiffs and Respondents, 

JAMES B. WALTERS AND ALICE E. FLAGER 

as County Treasurer of ?ladison County, 

Montana, 

Defendants and Appellants. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of I'ladison, The Honorable 

Frank Blair, Judge presiding. 

Counsel of Record: 

For Appellants: 

Jenkins Law Firm; Kelly A. Jenkins argued, Helena, 

Montana 

For Respondents: 

Chester Lloyd Jones argued, Virginia City, Montana 

(Constitutional Question) 

Hon. PIike Greely , Attorney General, Helena, Yontana 

Submitted: April 19, 1983 

Decided: June 14, 1983 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendant (Walters) appeals from a summary judgment in 

the Fifth Judicial District, Madison County; finding void a 

tax deed to Walters in 1981; declaring plaintiffs (~dwards 

and Sternad) entitled to redeem and have title to the 

property sold to Walters; and barring Walters from asserting 

any claim to the property. 

Edwards and Sternad are the alleged successors to J & J 

Enterprises, the partnership taxed on Lot 52 of the Shining 

Mountain Unit I11 Subdivision. The taxes on the property 

were delinquent. The County Treasurer of Madison County 

issued a certificate of tax sale on July 19, 1978. (This 

certificate was eventually assigned to Walters on May 6, 

Walters posted the property, advertised in - The 

Madisonian, the local newspaper and alleges that he sent a 

certified letter to J & J at its last known address, all more 

than 60 days prior to his application for tax deed. The 

property description set out in the complaint is: 

"Lot No. 52 of the Shining Mountains (Unit I11 Subdivision, the plat of which is of record in the 

office of the Recorder of Madison County, Montana, 

in Book 4 of Plats, pages 58-63." 

The published notice provides: 

"Notice is hereby given that the undersigned will 

on the 19th day of July, apply to the county 

treasurer of Madison County for a tax deed to the 

following described property, to wit: 

"Clay Sub-lot 3, 35-4SlW 

"Amount, $115.20 

"S.M. Unit 3, Lot 52, 

"Amount due, $330.35 

" (s) James Walters 

"(Pub. May 7, 14, 1981) jw" 
The affidavit of proof of service of notice, required to 

be submitted to the county treasurer, stated in part: 

"Notice of Application for Tax Deed on the 

following described property, to-wit: 

"Shining Mountains Unit 3, 35, Twsp 45, Rg.lW was 

served on J & J Enterprises, record owner of said 

land, by placing a copy of said Notice in a 

certified letter addressed with the last known 

mailing address . . . on which date 

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

application for the Tax Deed on said property; 11 . . . 

Walters did not file a return receipt with the county 

treasurer to show that a certified letter had been received 

by Edwards and Sternad. In their complaint, Edwards and 

Sternad assert that Edwards spoke with Walters on the 

telephone and that in this conversation Edwards informed 

Walters that he intended to pay the taxes owing. They 

further assert that Walters assured them that he would not 

pursue the tax deed proceedings. Edwards and Sternad did not 

pay the taxes, they say, in reliance upon Walter's statement. 

On August 25, 1981, Walters paid $227.95 for taxes then due 

and received a tax deed to the property. Walters filed 

notices and affidavits of his claim to tax title. 

On May 5, 1982, Edwards and Sternad tendered payment of 

$305.77 for the overdue taxes. On May 7, 1982, the County 

Treasurer refused the payment. The money was then deposited 

with the Clerk of Court. On May 10, 1982, Edwards and 

Sternad filed a complaint against Walters and the Madison 

County Treasurer. The Treasurer was later dropped from the 

action. 

In their complaint Edwards and Sternad allege that the 

time for redemption of the property had not expired because: 

(1) the tax deed was wrongfully issued and inadequately 
noticed, and (2) Edwards and Sternad relied on Walter's 

statement that he would not seek the tax deed. 

Edwards and Sternad moved for summary judgment alleging 

errors in Walter's tax deed application procedure. They also 

assert that the tax deed curative statute, section 15-18-203, 

MCA, permits a taking notwithstanding the procedural defects 

in Edward's application, and so is unconstitutional. 

Walters failed to file affidavits or a brief in 

opposition to the motion for summary judgment. The District 

Court, after hearing arguments of counsel, granted the motion 

on August 25, 1982. 

ISSUES 

1. Whether the District Court correctly granted summary 

judgment in favor of Edwards and Sternad upon finding no 

genuine issue of material fact. 

2. Whether the errors and omissions in the tax deed 

proceeding were sufficient to deny the County Treasurer 

jurisdiction to issue the tax deed. 

3. Whether the curative statute providing for 

alternative notice, section 15-18-403, MCA, effectively 

allows a deprivation of property without due process of law. 

I. SUMMARY JUDGMENT PROCEDURE. 

Walters argues the District Court improperly granted 

summary judgment in this case because, he asserts, there are 

material questions of fact present in this case. He asserts 

that Edwards and Sternad are alleged in the complaint to be 

the current owners and that J & J Enterprises was the only 

record claimant of adverse interest to Walters for the period 

involved; but neither Edwards, Sternad or J & J Enterprises 

is alleged in the complaint as having been one entitled to 
notice by mail or publication pursuant to sections 

15-18-202 (2) , (3) MCA. 

Section 15-18-202(2), MCA, provides: 

"Notice of any owner, mortgagee or assignee of 

mortgagee shall be given by registered or certified 

letter addressed to such mortgagee or assignee at 

the post office address of said owner, mortgagee or 

assignee as disclosed by the mortgage record . . ." 

J & J Enterprises was the record owner of the property. 

In his Affidavit of Service of Notice of Application for tax 

deed Walters claims he sent notice to J & J Enterprises, who 

was required to receive notice pursuant to the statute. 

Furthermore, Walters published notice pursuant to 

section 15-18-202 (3) which provides for notice to unknown 

owners. 

These statutes do not require that persons show they 

are entitled to notice but require notice be provided the 

record owner; which was done in this case and not contested 

by Edwards and Sternad. 

Furthermore, Walters did not file any documents in the 

District Court to support his contention that there were 

material questions of fact. 

Rule 56(e), M.R.Civ.P. provides in part: 

" . . .When a motion for summary judgment is made and 

supported as provided in this rule, an adverse 

party may not rest upon the mere allegations or 

denials in his pleadings." 

Summary judgment is appropriate when the moving party 

shows a complete absence of genuine issue of material fact; 

and when the defendants fail to come forward with evidence 

of genuine issue of material fact. Willson v. Taylor (1981), 

- Mont . - , 634 P.2d 1180, 1184, 38 St.Rep. 1606. 

J & J Enterprises was the owner of record of the real 

property prior to the issuance of the tax deed. This fact 
was alleged in the complaint and admitted by Walters in his 

answer. Edwards and Sternad assert in their complaint that 

they are the successors in interest to J & J Enterprises. 

Walters denies this allegation for lack of knowledge but 

Walters failed to come forward with his own affidavits in 

dispute of Edward and Sternad's averments. 

For these reasons, summary judgment was properly 

granted. 

11. ERRORS AND OMISSIONS IN THE TAX DEED PROCEEDINGS. 

Edwards and Sternad contend the errors in the published 

notice are: (1) an overstatement of the amount necessary to 

redeem the property by over $100.00; (2) failure of the 

notice to give a complete date as to time for redemption (no 

year); and (3) an incomplete and vague description of the 

property. 

They further contend the errors in the Affidavit of 

Service of Notice of Application for Tax Deed, required to be 

filed pursuant to section 15-18-204, MCA, are: (1) an 

insufficient date upon which the certified letter of notice 

was mailed (no date appeared on the affidavit); (2) an overly 

broad description which fails to adequately identify the 

property; (3) no support of proof of service of notice as 

required by section 15-18-202(1), MCA; and, (4) fails to 

demonstrate that the information required in a mailed notice 

was in fact included in the notice as required under section 

15-18-202 (1) , MCA. 

They assert that the documents filed and notice provided 

by Walters were so fatally defective as to deny the county 

treasurer jurisdiction to issue the tax deed. 

Section 15-18-202, MCA, provides: 
"Notice of application for tax deed. (1) The 

purchaser of property sold for delinquent taxes or 

his assignee must, at least 60 days previous to the 

expiration of the time for redemption or at least 

60 days before he applies for a deed, serve upon 

the owner of the property purchased, if known, and 

upon the person occupying the property, if the said 

property is occupied, and if the records in the 

office of the county clerk and recorder show an 

unreleased mortgage or mortgages upon the property 

purchased upon the mortgagee or mortgagees named in 

said mortgage or mortgages or if assigned, upon the 

assignee or assignees of said mortgage or 

mortgages, a written notice stating that said 

property or a portion thereof --- has been sold for 

delinquent taxes, giving the --- date of sale, the 

amount of property - sold, - the amount for which it 

-- was solz the amount - due, and the --- time when the 

right of redemption will expire or when the 

purchaser will apply for a tax deed. The owner of 

the property -- or the mortgagee or the assignee of 

said mortgaqee has the ri g ht of redemption 

indefinitely, until such notice -- has been given and 

-- the deed applied for, upon the payment -- of fees, 

percentages, penalties, and costs required & - law. 

" (2) Notice - of any owner, mortgagee, or assignee 

of mortgagee shall be given % registered - or 

certified letter addressed to such mortgagee or 

assignee at the post office address of said owner, 

mortgagee, or assignee as disclosed by the mortgage 

records in the office of the county clerk and 

recorder. In case of unoccupied property or a 

mining claim, such notice must be by registered or 

certified mail deposited in the post office, 

addressed to any known owner residing in or outside 

of said county, with the postage thereon prepaid, 

at least 60 days before the expiration of the time 

for redemption or at least 60 days before the 

purchaser applies for such tax deed, in addition to 

notice to the mortgagee or assignee of mortgagee in 

the manner and as hereby is provided. 

"3. In all cases where the post office address of 

the owner, mortgagee, or assignee is unknown, the 

applicant shall publish once a week for 2 

successive weeks in a newspaper published in the 

county where the property is situated a notice 

substantially in the following form: 

"Notice of Application for Tax Deed 

"Notice is hereby qiven that the undersiqned will 

on the day- of , 19, appiy to the 

county treasurer of county for a tax 

deed to the following described property, to wit: 

" (Describe property) 

" (Amount due $ Date 

(Applicant) 
" (4) The first publication of such notice must be 

made at least 60 days before the date of redemption 

or application for said deed. 

"(5) In all cases due proof - of service of notice 

in whatever manner given, supported the 

affidavit required by law, must be filed 

immediately with the clerk and recorder of the 

county in which the property is situated and be 

kept as a permanent file in his office, -- and such 

proof of notice when so filed shall be prima facie 

evidence -- of the sufficiency -- of the notice." 

Section 15-18-204, MCA, provides: 

"Affidavit of notice. ---- No deed of the property sold 

- at - a delinquent -- tax sale shall - be issued by the 

county treasurer to the purchaser of the property - . 

untilthe proof of service of notice of application 

----- for tax deed hasbeen f ilerwith the-county clerk 

- and recorder as required -15q8-202. Such 

purchaser is entitled to receive the sum of $3 for 

the service of said notice and the making of said 

affidavit required by 15-18-202, which sum of $3 

must be paid by the redemptioner at the same time 

and in the samemanner as other costs, percentages, 

penalties, and fees are paid." 

When Walters filed his affidavit of proof of service of 

notice as required by section 15-18-204, MCA, he neglected to 

state when a certified letter containing the notice was 

mailed. It merely stated that it was mailed "on 

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

application for a Tax Deed on said property." No supporting 

documents showing due proof of service of notice were filed 

with the affidavit. 

This Court has held that: 

"The requirements of the statutory law must be 

fully met in order to cut off the right of 

redemption and where, as here, the record shows a 

glaring omission to comply with those requirements, 

the right of redemption is not cut off. The 

affidavit filed with the county treasurer must be 

explicit. The county treasurer has no authority to 

indulge in any presumption with regard thereto. 

Nothing can be read into it that does not plainly 

appear therein. The provisions of the statute are 

mandatory and absolute and any failure to comply 

with statutory requirements relative to the 

affidavit of service will void the tax deed 

subsequently issued." Lowrey v. Garfield County 

(1949), 122 Mont. 571, 583, 208 P.2d 478, 485. 
The statute requires that proof of service of notice of 

application for tax deed be filed in accordance with section 

15-18-202, MCA, which was not done in this case. 

From the record before us it is apparent that the 

treasurer of Madison County could not have known from the 

document filed that notice was properly given or given at 

all. 

The affidavit is also alleged to contain a faulty 

property description by omission of the lot number, therefore 

rendering it insufficient. 

The affidavit sets out the description as: Shining 

Mountains, Unit 3, 35, Twsp 4s1 Rg 1W. 

This court has determined that when the property 

description is too vague to adequately identify the land in 

question; the description is fatally defective. Yetter v. 

Gallatin County (1982) , Mont . , 645 P.2d 941, 39 

St.Rep. 905, 907. 

Walters also published notice of application for tax 

deed in The Madisonian on May 7 and 14, 1981. In this 

notice, the taxes declared to be due were overstated by over 

$100.00, the notice failed to give the year of the 

application for tax deed. It also contained a vague property 

description by designating Shining Mountain as S.M. Such a 

description would not necessarily put one entitled to notice 

on inquiry and is therefore vague. 

For validation of his notice procedures Walters relies 

on section 15-18-205(2), MCA. It provides: 

"(2) -------- A tax deed executed in the form as provided 

-- in this section, when duly acknowledged and proved, 

- is prima facie evidence that: 

"(a) the property was assessed as required by law; 

"(b) the property was equalized as required by 

law; 
"(c) the taxes were levied in accordance with law; 

"(dl the taxes were not paid; 

" (e) notice of ---- tax sale was given and published 

and property sold --- at the proper time -- and place - as 

prescribed - law; 

"(f) the property was not redeemed, and the proper 

notice of application for deed has been served or 

posted as required by law; 

"(g) the person who executed the deed was the 

proper officer; 

"(h) where the real estate was sold to pay taxes 

on personal property, the real estate belonged to 

the person laible to pay the tax." 

The errors in the notices and affidavit and Walters' 

failure to file proof of mailing of a certified letter to J & 

J Enterprises establish that the necessary proof of notice to 

establish a prima facie showing of proper notice was lacking. 

Therefore, the presumption does not become effective. 

Walters is thereby precluded from using the statute to 

enforce the tax deed. 

The effect of these errors and omissions is to deny the 

county treasurer jurisdiction to issue the tax deed. 

This Court has stated that: 

"'The law by its terms, gives to the notice the 

dignity of process of law, and to deprive him of 

his property, without giving this notice, is to 

deprive him of his property without due process of 

law. The giving of this notice is just as much a 

prerequisite to the issuance of a tax deed that 

will bar the right of redemption as the service of 

a summons is a prerequisite to the entry of a valid 

judgment.'. . . 

"Notice . . . is analogous to process in the 

courts; and it is well known that a judgment, even 

so solemn a document as it is, is absolutely void 

unless the defendant has been served with process . . . provided by law. Otherwise he is deprived of 

his property without due process of law. And a 

judgment is equally void, where it recites on its 

face that the defendant has been served with 

regular process, as any other void judgment, when 

the judgment roll or the proceedings disclose that 

the defendant has not been served with process. A 

judgment of this character is void, absolutely 
void, and can be stricken down at any time. Lowrey 

122 Mont. at 581, 208 P.2d at 484. 

"The filing of an affidavit which meets with the 

statutory requirements is jurisdictional. Without 

such affidavit the treasurer is wholly lacking in 

power and authority to issue the deed.. . . 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 a 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 legislature may not do away with 

due process and notice and it is powerless to enact 

valid legislation exempting a tax deed from attack 

for failure to comply with the requirements of a 

jurisdictional nature constituting the necessary 

prerequisites to the validity of the tax deed." Id 

at 580, 208 P.2d at 484. 

The defects in the affidavit of notice of service given to 

the county treasurer and the defects of the published notice 

are of such a nature as to preclude the county treasurer from 

issuing the tax deed for lack of jurisdiction. 

Walters attempts to argue that actual notice on the part 

of Edwards and Sternad precludes them from arguing lack of 

proper notice. When discussing the predecessor to section 

15-18-202, MCA, this Court stated: 

"Some contention is made that actual knowledge of 

the proceedings by the plaintiff bars him from 

relief. The record does not disclose that the 

plaintiff had the knowledge required to be given 

him by section 2209; and, furthermore, it is the 

notice given by the applicant, as required by the 

statute, which is controlling. Therefore there is 

no merit in this contention." Kerr v. Small 

(1941), 112 Mont. 490, 494, 117 P.2d 271, 273. 

Walters is therefore precluded from asserting actual 

knowledge of Edwards and Sternad as a defense to improper 

notice procedures under the tax deed statutes. 
From the foregoing it is apparent that the tax deed 

issued by the county treasurer is void. Since the deed 

itself is void we need not address the constitutionality of 

section 15-18-403, MCA. 

The summary judgment of the District Court is affirmed 

in all respects. 

QA-Q.%/ Justice 

We Concur: 

'b,4.~4 

Chief Justice 

I 

ustices