### No. 84-511 

### IN THE SUPREME COURT OF 

### THE STATE OF 

### MONTANA

Plaintiff and Appellant,-vsHAROLD

### V. KRUSE and NAOMI J. KRUSE, Husband and Wife, and ROBERTM. WILLETT, BRUCE MICHEL ROBERTS, and All other Personsclaiming interest in described realproperty, Defendantsand Respondents.



# ........................... KRIS ROBERT HIRT, Intervenor and Respondent,

JAMES B. WALTERS, LEEMcDONALD and RICK HILDEBRANDAND SANDY HILDEBRAND,Husband and Wife, Defendants and Appellants.

APPEAL FROM: District Court of the Nineteenth Judicial District, In and for the County of Lircoln, The Honorable Robert M. 

### Bolter, Judgepresiding. COUNSELOF RECORD: For Appellants: Sverdrup & 

### Spencer,Libby,Montana Fennessy,Crocker & 

### Allen, Libby, Montana For Respondents: Allen L. 

### McAlear, Bozeman, Montana

Submitted on Briefs: May 9,1955 ~ecided:January 8, 

### 1986 

### Filed: 

## JAN 

## 8

# -I986



# - - 

### ClerkNr. JusticeWilliam E. Hunt, Sr. delivered theOpinion of the Court.

The appellant, James Walters, brought a quiet title action in April. 1981 inI;incoln County District Court. The named defen6ants 

### made no appearance and the Cistrict Court ordere6 

### title quieted in appellmt VJalters on June 8, 1981. 

### In February 1983, the respondent, Kris I-Tirt, fil-ed a motion 

### and action to 

### set aside that decree. The District Court crdered the decree set aside and the parties then proceeded

on the origi~al quiet 

### title action as if 

### an appearance had heen made. The District Court quieted 

### title in the respondent, KrisRoberts Hirt. This appeal followed. We affirm. The issuespresented forrev:

### 'ew are: 1. Whether the District Court erred in setting aside thequiet titledecree. 2. Whether there 

### wwas evidence 

### of fraud sufficient 

### tc allowthequjet 

### titledecree tobe 

### set aside. 3. Whether a diligent search was performed in accorCance with Rule 40(5), b4.R.Civ.P. The first issue 

### is whether the 

### District Court erred. in settingasidethe quiet 

### titledecree. Our discussiocof this issue controls an6 renders a discussion of the remaining issuesunnecessary. Thismatter concerns a two parcel tract

### cf realproperty located 

### in Lincoln County, Montana. In 1958, Harold and h'aomi Kruse purchased the property from Forrest and Vera Sund. The deed was recorded 

### inLinccln County. In 1972, the Kruses sold the property by contract for deed 

### to Robert Wil-lett. 

### The contract

### was held in

### escrow inBonners Ferry, Idaho. The contract made no provision fcr payment of taxes. In 1373, Willettassigned the contract to Bruce and KrisFoberts. The Roberts' marriage was dissolved and as part of the divorce settlement Eruce assigned his interest. to Rris in December 1974, and then executed a quit claim deed to her in August 1975. Pris 

### is now Kris IIirt, respondent. There was no notice of any of these transactions recorded inLincoln County where the land 

### is located. LincolnCounty continued toassess taxes on theproperty totheFruses asrecord owners. The 1976 taxes

### were not paid and in July 1977, the property 

### was offered for public tax sale. No bid was received on theproperty and Lincoln County became thepurchaser. In Ja~uary1980, Lee McDonald purchase2 the property from Lincoln County via a tax deed. procedure. The tax deed contained an incorrect and incomplete description. In Februs-ry 1981, the appellant, James Walters, purchased the property fromMcDo~ald. b7alters recorded hisdeed. IEApril 1981, Walters filed a complaint toquiet 

### title to the property. He named 

### as defendants in that action the Kruses, Willett, Bruce Poberts, and "all other persons, ~lnknown. 

### " On June 8, 1981, the District Court, having determined that the defendants had been duly served, yet failed to appear and 

### were indefault, and having determined that proof to the satisfaction of the court having been made, ordered title quieted in the appellant. Appellant, Walters, then conveyed two parcels toRick and Sandy Hildebrand. That deed

was recorded in Cctober 1981. In the meantime the respondent, Rris Hirt, had been paying 

### on her contract held in escrow in the Idaho bank. The respondent believed. thatthe escrow arrangement included payment of taxes. In September 1982, respondent's friend who lived next to the property advised her that somecr,e was living end building 

### on theproperty. 

### In February 1983, Kris ITirt filed consolidated motions to 

### set aside her default and to intervene 

### ir, the original quiet 

### title acrtion, a third party complaint on quiet 

### title, and an action to 

### set aside the tax deed. She alleged tha.t. the tax 

### sale and subsequent transfers were void. for irregularities incl-uding lack of definite description, failure to give proper notice, fraud on the court, and failure to use proper tax deed procedure. She named the appellant, hispredecessor, McDcna.ld, and the Hi1debra.r.d~as defendants. In November 1983, the CistrictCourt 

### set aside 

### itsJune 1981, decree that had quieted 

### title in the appellant. Appellant, Walters, then moved to 

### set aside this judgment in favor cf the respondent., Hirt. This motion was denied. The appellant then filedan amended complaint and thenatterwent to trial. 

### In July 1984, the District Court issued fj-ndings of fact and conclusions of law. The court found.thatLincoln County did not have jurisdiction to issue a taxdeed because thenotice

### wasmeterial.lydefective instatingthe amount due and in setting forth the clescription. As a result of the defects, the court found that KrisRoberts did not. lose her right to redeem the property by payment of delinquent taxes and that upon payment of those taxes she sh.ould have the title quieted in her favor on the land not. previously conveyed totheHildebrarids. As to the land conveyed 

### to t-he IIildebrands, the court fou~d that 

### title should remain in th.e HiLZebrands as bonafide purchasers for val-ue, but that the appellant Walters should! pay Hirt For the property he had conveyed to them. Judgnent was entered quieting 

### titleintherespondent subject tothe Hildebrand's Grappellant's right toredeem by paying the respondent for the parcel upGn which the Hil.debrands had constructed buildings. Both the appellants and Hildebrands appeal~d. Subsequently theHildebrands settledtheir dispute and dismissed their appeal. The first issue 

### we must decide 

### iswhether the District Court erred insettinga-sidethequiet

### titledecree. 

### The respondent, inher consolidatedmotion and actionto 

### set aside the quiet 

### title decree, also challenge6 the underlying tax deed procedure under which lGcDonald, appellant's prezecessor 

### in title, claimed his interest. However, 

### as the District Court found, the description of property claimed under the tax deed procedure was so 6eficient that there could be no valid transfer of any interest under any kind of action. The notice published in the tax deed procedure referred to Section 25 and not to Section 26, the section inwhich the land 

### lies. In addition the description referred toa "Tract 1" inH.E.S. 735--there 

### is no Tract 1 in H.E.S. 735. To compounl the difficulty in locating the land, the description 2id not indicate north or south forthetownship, oreastor

### west forthe range. Fe agree with the Cistrict Court that the nctice of application fcr tax deed was so vague, incomplete and

erroneous that 

### it does not adequately identify the lanz and 

### is therefore fatally defective. Yetter v. Gallatin County (Kont. 1982), 645 P.26 941, 942, 39 St.Rep. 905, 907. Defective notice of application for a tax deed deprives the county treasurer of jurisdiction to issue the tax deed.

### Edwards 

### v. Walters (Kont. 1983), 664 P.2d 

### 332, 937, 40 

### St.Rep. 914, 921. Because no valid tax deed 

### has been issued respondent's right to redeer,the property has 

### not. terminated. Section 

### 15-18-101, MCA. Because of our holding a-s 

### to the first issue it is not necessary to discuss the second and third issues. The judgment of the District



### We Concur: