Foster v. Bender , 28 Mont. 526 ( 1903 )

ME. COMMISSIONER CALLAWAY

prepared tlie opinion for tlie court.

This action was brought for the purpose of canceling a tax deed affecting certain real property in the city of Butte, which was sold April 1, 1895, by the treasurer of Silver Bow county to Fergus F. Kelly for taxes attempted to be levied thereon in the year 1894.

In their complaint plaintiffs offered to pay the defendant the amount of all taxes, penalty, and costs assessed and accruing against the property for the year 1894, with interest thereon.

In its conclusions of law made upon a trial of the cause, the court found the plaintiffs entitled to have the tax deed canceled, and the defendant entitled “to the amount of taxes due upon the property for the year 1894, together with the interest thereon allowed by law upon delinquent taxes from the time of the sale of the premises to Fergus F. Kelly, assignor of the plaintiff.” The word “plaintiff” should read “defendant.;” it was conceded by all that Kelly was the assignor of the defendant, and tlie court so states in its findings of fact. Upon its findings of fact and conclusions of law, the court entered a decree in favor of plaintiffs, canceling the deed, but failed to provide in the decree that the plaintiffs should refund to defendant the taxes, penalty, costs and interest above mentioned.

The defendant complains that the decree is not responsive to the pleadings, and does not conform to the conclusions of law, because it cancels the tax deed without requiring payment to the defendant of the amount admitted by plaintiffs to be due, and so found by the court. The decree must be corrected in this respect.

We advise that the cause be remanded to the district court, with directions to amend its decree conformably to the conclusions heretofore found by it, and that, when so modified, the judgment be affirmed.

Pee Cueiam. — Por tbe reasons given in tbe foregoing, opinion, tbe cause is remanded, witb directions to amend tbe decree as above suggested, and, wben so modified, tbe judgment will-be affirmed.