Birney v. Warren , 28 Mont. 64 ( 1903 )

MR. JUSTICE HOLLOWAY,

after stating the case, delivered the opinion of the court.

The first conclusion of law made by the court is, in our judgment, erroneous. Under Section 3672 of the Political Code, all machinery used in mining, and all property and surface improvements upon or appurtenant to mines and mining claims, which have a value separate and independent of such mines or mining claims, shall be taxed as other personal property, and, as the property in controversy comes within the purview of this section, it was properly assessed as personal property. Section 3700 of the same Code provides that the assessor must ascertain the names of all taxable inhabitants and all property in his county subject to taxation, and must assess such property to the persons by whom it was owned or claimed, or in whose possession or control it was, at 12 o’clock m., on the first Monday of March next preceding. Section 3706 of the same Code provides that, if the owner or claimant of any property is absent or unknown, the assessor must make an estimate of the value of the property; and Section 3707 provides that, if the name of the absent owner is known to the assessor, the property must be assessed in his name; if unknown, it must be assessed to “unknown owners.” The record discloses the fact that the property in question was assessed to the Queen Bee Mining Company. The corporation bearing that name had no1 existence whatever until after the sale of the property. The record further1 shows that the property was owned by this plaintiff and McPherson, both of whom were nonresidents unknown'to the assessor. There is no showing in the record that any one had actual possession of the property on the first Monday of March, 1896, or that any one other than Birney and McPherson had constructive possession of it. The assessor, then, did not assess the property to the persons by whom it was owned on the first Monday of March of that year. He did, however, following the requirements of Section 3706, malee an estimate of the value of the property, and-then, notwithstanding Section 3707 required in this case that the property should be assessed to “unknown owners,” he assessed it to the Queen Bee Mining Company, to whom he supposed the property belonged. The query then is, what is the effect of a mistake in the name of the owner of personal property upon the assessment so made? Section 3916 of the same Coda provides: “When land is sold for taxes correctly imposed as the property of a particular person, no misnomer of the owner, or supposed owner, or other mistake relating to the ownership thereof, affects the sale, or renders it void or voidable.” Applying to this section the rule of interpretation, “Expressio undus est exclusio aMerius,” the conclusion necessarily follows that, when .personal property is sold for taxes imposed as the property of a particular person, a misnomer or mistake relating to the ownership! thereof does vitiate the assessment, and renders the sale void; in other words, the provisions of Sections 3700' and 3707 are mandatory, and, witb the qualifications therein mentioned, require the assessor to assess personal property in the name o£ the real owner, if known; if not known, then to “unknown owner's.” (People v, Whipple, 47 Cal. 591; Dowell v. City of Portland, 13 Oregon, 248, 10 Pac. 308.) In Crawford v. Schmidt, 47 Cal. 617, in construing Section 13 of the ^Revenue Act of California of 1861, which provides that the assessor shall list and assess property to the person owning, claiming, or having possession or control of the same, and, if the name of such an absent owner is known to1 the assessor, the property shall be assessed in his name, and, if unknown to the assessor, the property shall be assessed to “unknown owners/’ the court makes this comment: “The statute is imperative that the property must be assessed to the owner, if known, and, if not, to unknown owners. In this¡ case the assessment was not, and does not purport to have been, made to unknown owners. It cannot, therefore, be assumed that the name of the owner was unknown to the assessor. But instead of assessing the property to Caroline Schmidt, who was the owner, he assessed it to —— Schmidt, a designation which would have applied as well to any other Schmidt, whether male or female, as to the real owner1. We think this was not a compliance with the statute, and that the assessment and sale were void.” In Lake County v. Sulphur Bank Q. M. Co., 66 Cal. 17, 4 Pac. 876, the court, in construing Section 3628 and subsequent sections of the Political Code of California, held that a mistake in the name of the owner of real property does not invalidate the tax, but that an assessment of personal property to a named person other than the owner is absolutely void.

Neither is the defendant in this case in a position to complain of the harshness of this rule. The assessment and sale of property for delinquent taxes is a proceeding m inmium.; the purchaser at such a sale buys at his peril, and the rule of ccvoeat errtpior applies. (Lake County v. Sulphur Bank Q. M. Co., above ; Hecht v. Boughton, 2 Wyo. 385.)

In conclusion we may say that the fourth conclusion of the court, “that said John J. Warren is now, and has been ever since said 27th day of February, 1897,'the owner and entitled to the possession of all of said property,” is directly in conflict with and contradictory of the statement contained in paragraph 12 of the agreed statement of facts quoted above, which is that Birney was the owner of the properly at the time of the com-mencemnt of this action (April 26, 1897). Section 1117 of the Code of Civil Procedure provides that the agreed statement of facts has the effect of special findings of fact, and we are of the opinion that a conclusion of law directly contradictory of a finding of fact would in itself suffice to vitiate a judgment entered thereon.

For the reasons herein set forth, the judgment appealed from is reversed, and the cause remanded for further proceedings not in conflict with the views herein expressed.

Reversed and remanded.