Edwards v. Walters ( 1983 )


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  •                                               No.    82-380
    I N THE SUPREP4E COURT OF THE STATE O MONTANA
    F
    1983
    JAMES E. E W R S AND GERALD A .
    D AD
    STERNAD,
    P l a i n t i f f s and R e s p o n d e n t s ,
    JAMES B. WALTERS AND ALICE E. FLAGER
    a s County T r e a s u r e r o f ? l a d i s o n County,
    Montana,
    D e f e n d a n t s and A p p e l l a n t s .
    Appeal from:        District Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
    I n a n d f o r t h e County o f I'ladison, The H o n o r a b l e
    Frank B l a i r , Judge p r e s i d i n g .
    C o u n s e l o f Record:
    For Appellants:
    J e n k i n s Law F i r m ; K e l l y A.          Jenkins argued, Helena,
    Montana
    For Respondents:
    C h e s t e r Lloyd J o n e s a r g u e d , V i r g i n i a C i t y , Montana
    (Constitutional Question)
    Hon. PIike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Yontana
    Submitted:               A p r i l 1 9 , 1983
    Decided:             June 1 4 , 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 Sub-
    division, 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 6 0 days previous to the
    expiration of the time for redemption or at least
    6 0 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 - -sold for
    has been -
    delinquent taxes, giving the - -of sale, the
    date   -
    amount of property - - amount for which it
    sold, the
    - - z the amount - and the - - -
    was s o l               due,          time when the
    right of redemption will expire or when the
    purchaser will apply for a tax deed. The owner of
    the property - - mortgagee or the assignee of
    or the
    said mortgaqee has the right o f redemption
    indefinitely, until such notice - been given and
    has -
    - - applied for, upon the payment - -
    the deed                                   of fees,
    percentages, penalties, and costs required & -  law.
    " (2) Notice - any owner, mortgagee, or assignee
    of
    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 6 0 days before the expiration of the time
    for redemption or at least 6 0 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         , 1 9 , appiy to the
    county treasurer of               county for a tax
    deed t o 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 - - sufficiency - - notice."
    of the            of the
    Section 15-18-204, MCA, provides:
    "Affidavit of notice. - - -of the property sold
    No deed -
    at - delinquent - - shall - issued by the
    -   a             tax sale       be
    county treasurer to the purchaser of the property
    -   .
    untilthe proof of service of notice of application
    - - - - - filerwith the-county
    for tax deed hasbeen                         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) - - - - deed -
    A tax - - - executed in the form as provided
    in -
    -  this section, when duly acknowledged and proved,
    - prima facie evidence that:
    is
    "(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       - - - - was given and published
    of tax sale
    and property       sold at the proper - - place -
    ---                time and  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
    

Document Info

Docket Number: 82-380

Judges: Sheehy, Haswell, Harrison, Shea, Weber, Morrison, Gulbrandson

Filed Date: 6/14/1983

Precedential Status: Precedential

Modified Date: 11/10/2024