Glacier County v. Schlinski , 90 Mont. 136 ( 1931 )

Proceedings leading to tax sales and tax deeds arestrictissimi juris and failure to follow exactly the steps prescribed by law renders the sale or deed void. (26 R.C.L. 394, 395, 396; Id., 431, 432; Numitor Gold Min. Co. v. Katzer,83 Cal. App. 161, 256 P. 464; Rush v. Lewis and Clark County,37 Mont. 240, 95 P. 836; Hinz v. Musselshell County,82 Mont. 502, 267 P. 1113; Carter v. Chevalier, 100 Cal. App. 567,280 P. 706; Tilden v. Chouteau County, 85 Mont. 398,279 P. 231; State ex rel. Federal Land Bank of Spokane v.Hays, 86 Mont. 58, 282 P. 32; Land v. Banks, (Tex.Com.App.) 30 A.L.R. 1, 5, 254 S.W. 786.)

Sales for delinquent taxes are invalid unless held at the time required by statute. (26 R.C.L. 397; Hamer v. Glenn Inv. Co.,75 Colo. 423, 226 P. 299; Chase v. Bogardus, 78 Colo. 573,243 P. 546; Howe v. Bennett, 81 Colo. 20, 253 P. 29;City and County of Denver v. Murry, 82 Colo. 128,257 P. 359; Cooke v. Pennington, 15 S.C. 185; Ireland v. GunnisonMountain Coal Coke Co., 87 Colo. 193, 286 P. 280.)

The sale was void because made for an excessive amount. The rule "de minimis non curat lex" has no application to statements of the amount due in notices of tax sales and of application for tax deeds; a tax sale for an excessive amount is void. (Warden v. Broome, 9 Cal. App. 172, 98 P. 252; annotation, 44 A.L.R. 185 et seq.; Bussenius v. Warden,71 Cal. App. 717, 236 P. 371; Snodgrass v. Errengy (Bell),86 Cal. App. 664, 261 P. 497; Gottstein v. Kelly, (Cal.App.) 269 P. 940, 276 P. 347; Clark v. Duncanson,79 Okla. 180, 16 A.L.R. 315, 192 P. 806; Kipp v. Danielson,108 Cal. App. 624, 288 P. 882; Shine v. Olson, 110 Minn. 44, 19 Ann. Cas. 962, 124 N.W. 452; Salter v. Corbett, 80 Kan. 327,102 P. 452.)

A tax deed void upon its face is not competent evidence of title. (Horsky v. McKennan, 53 Mont. 50, at 63, 162 P. 376;Knoke v. Knight, 206 Cal. 225, 273 P. 786; Inman v.Tucker, 138 Tenn. 512, 198 S.W. 247; Rush v. Lewis and ClarkCounty, 36 Mont. 566, 93 P. 943.) The law applicable at the time of sale follows throughout all proceedings dependent thereon. (Scott v. Beck, 204 Cal. 78, 266 P. 951; Larson v. Gilderoy, 45 Idaho, 764, 267 P. 234.)

The tax deeds in question are void because based upon a void tax sale. The sale was void because held earlier than the time fixed by law. There can be no question that section 2191, Revised Codes 1921, as amended by Chapter 46, Laws of 1923, authorized the county treasurer to offer the property in this case for sale for delinquent taxes upon the first day of October, 1923, and not upon any earlier date. The treasurer was not authorized to strike off the property to the county until he has offered it for sale upon two separate days, there being at each offering no bona fide bidder. (Rush v. Lewis and ClarkCounty, supra.) It follows, therefore, that the earliest date upon which the county treasurer of Glacier county was authorized to strike off the property in question to Glacier county was the second day of October, 1923. We submit that the holding of the sale one day earlier than the time fixed by the statute is a fatal defect; it is more than a mere irregularity; it is a substantial departure by the taxing authorities from a provision of the statute designed for the protection of the land owner.

The so-called curative Acts (Chap. 46, Laws 1923; Chap. 31, Laws 1929) did not validate the deeds. The authorities are legion in support of the view that the legislature has the right to cure defects in tax sale and tax deed irregularities. Maxwell v. Page, 23 N.M. 356, 5 A.L.R. 155, 168 P. 492 (1917), collects and considers a great number of authorities to sustain the validity of a tax deed issued on a certificate of tax sale where the sale was prematurely held. In this opinion the question raised by the appellant is squarely met. The court there considered a great number of cases involving similar or identical curative Acts of many jurisdictions. Many of these cases went to the United States supreme court, particularly from West Virginia, Louisiana, and New Mexico. The principle of law laid down in Maxwell v. Page, is later confirmed in NewMexico Realty Co. v. Norment, 27 N.M. 101, 196 P. 176, andChisholm v. Bujac, 27 N.M. 375, 202 P. 126 (see, also, DelCastillo v. McConnico, 168 U.S. 674, 42 L. Ed. 622, 18 Sup. Ct. Rep. 229; Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49; Stuart v. Chapman (Smith), 87 Cal. App. 552, 262 P. 348; 24 Cal. Jur. 372.)

Appellant contends that the notice of application for tax deed was in excess of the amount due, in the sum of $8.97. The appellant tendered the sum of $295 in payment of the taxes that might be due and did not point out or attempt to show the county treasurer or the court that the amount stated in the notice of application for tax deed was excessive. There was no showing made in the lower court that the amount was excessive and that showing comes for the first time in the appellant's brief. Had the appellant made or attempted to make the showing in the lower court, the respondent could have introduced evidence in rebuttal. "Where a pleading undertakes to impeach the validity of a tax title, it is not sufficient to allege that the opposite party claims some interest in the premises under certain tax sales or deeds but that the same are invalid; but it is necessary to point out, clearly and specifically, and in apt terms, the particular defect, illegality, or failure of compliance with the law which is supposed to invalidate the title and on which the pleader means to rely." (37 Cyc. 1514; see, also, Casey v. Wright,14 Mont. 315, 36 P. 191; Manhattan Trust Co. v. Davis,23 Mont. 273, 58 P. 718; Conklin v. Cullen, 29 Mont. 38,74 P. 72.) The latter case is given credit for holding that one who pleads in a suit to obtain relief from a tax deed, a tender of the amount bid by a purchaser for his tax deed cannot contest the validity of the tax for the nonpayment of which the premises were sold, and this the respondent contends should be the rule and the party seeking to set aside a tax deed should be required to set forth the amount due and the tender thereof. Such an allegation would inform the holder of the tax deed the nature and extent of the defect relied upon by the adverse party.

The appellant alleges in his answer that he made tender of the amount claimed by the county as due, and that the same was refused. The respondent, therefore, claims that the appellant, having admitted the amount due when making the tender, cannot now deny that the amount was correct. (Kahn v. Thorpe, 43 Wash. 463,86 P. 855.)

The fact that the notice of application for tax deed may show an excessive amount of ninety-three cents, as contended by the respondent, or a greater amount as claimed by the appellant, is a matter, apparently, that our court has never passed upon. In some jurisdictions, among which is California, an excess amount of one cent would void the tax deed. That is the old rule but many jurisdictions have gotten away from that strict rule and the principle of these jurisdictions is set forth in 3 Cooley on Taxation, fourth edition, at page 2828, "In some jurisdictions, however, a tax sale has been sustained where the excess was only a few cents or even a dollar." (See, also, Dwight v. Waldron,96 Wash. 150, 164 P. 761.)

Curative Acts validate all irregularities except those going to jurisdictional defects. The appellant discusses the above Acts, and particularly those of 1923 and 1929. The apparent purpose of that discussion is to show that neither one of these Acts had any bearing on the deed in the case at bar. This court has had these statutes up in one or two of its late decisions. There does not seem to be any doubt but that the curative Act of 1929 affected the certificate of tax sale in the case at bar, even though the tax deed issued prior to July 1, 1929. The contention of the appellant that the Act in question so operated as to delay the statute of limitations from commencing to run until July 1, 1929, is as fantastic as the old scholastic debates seeking to determine how many angels could dance on the point of a needle. It is well settled that the legislature can enact a curative measure validating tax titles so long as it does not infringe upon the constitutional provision which provides that property cannot be taken without due process of law. These cases were pointed out early in this brief. On August 10, 1929, Glacier county instituted suit against Ruth Hall Schlinski "and all other persons" claiming any interest in a certain tract of land described in the complaint, adverse to the title of the county obtained by tax deed secured June 3, 1929. On August 26 Schlinski quitclaimed to Boris A.S. Aronow, who then filed an answer to the complaint in which he alleged title in himself and tender to the county of a sum in excess of the amount for which the tax deed was issued, with offer to pay any additional sum due the county, and alleged that the tax deed was void by reason of fatal defects in the tax sale and procedure on notice of application for deed. The affirmative matter in the answer was denied by reply.

On November 13, 1929, its treasurer issued to the county a correction deed, and this fact was brought into this suit by supplemental complaint. Defendant Aronow challenged the correction deed on the same grounds as those alleged against the original deed.

The evidence adduced at the trial was chiefly documentary, and contains no substantial conflict; thereon the court made findings in favor of plaintiff, declared that any irregularities in the proceedings resulting in the issuance of a tax certificate to the county were cured by the provisions of Chapter 31, Laws of 1929; that the amounts due the county at the time of application for deed were correct, all taxes mentioned were legally levied, assessed, and equalized, and all were unpaid; that no redemption was made; that the correction deed related back to the original, and the county became the owner of the property on June 3, 1929; and that the allegations of Aronow's answer and supplemental answer, except as to those of tender, "are not sustained by evidence or by competent evidence." Decree quieting title in the county followed.

Aronow has appealed from the judgment, and has specified fifteen alleged errors; such of these as are necessary to a determination of the appeal will sufficiently appear hereafter.

The facts, in so far as necessary here, are substantially as follows: The lands described were patented to Ruth Hall Schlinski in December, 1921, and were taxable in 1922; taxes for that year were duly levied and assessed, but were not paid and were placed on the delinquent tax list. This list, with notice that, unless the taxes listed were paid on or before January 13, 1923, the property described would be sold at public auction on that date, was duly published in the official newspaper, but no affidavit of publication, with copy thereof attached, was filed with the county clerk, as required by law. The property was not offered for sale on the day set, because of the passage of Chapter 1, Laws of 1923, declaring that "no property upon which taxes * * * have been levied * * * for the year 1922 shall be sold for such delinquent taxes until the first day of October, 1923." (Section 1.) The sale was evidently postponed, but no notice of postponement, published as required by the Act, appears in the record. Notice of sale on October 1 was published in three issues of the official paper prior to the sale, and on October 1 the property described was offered for sale, and, no purchaser appearing, was offered again on the same day, and, no purchaser being found, was on that day struck off to the county as purchaser, and certificate of sale reciting sale to the county on October 1 was duly issued. Taxes were duly levied and assessed for each year from 1923 to 1928, both inclusive, and in each year the taxes were permitted to go delinquent.

In April, 1929, notice of application for tax deed, apprising Ruth Hall Schlinski, as owner, of the amount for which the property was sold in 1923, including fifty cents for the issuance of the certificate, and the amount of taxes, interest, and penalty due for each year thereafter, with the total amount due for the redemption of the property — $280.75 — was served upon the owner at her then place of residence by registered mail. A copy of this notice was posted on an "allotment pin" on the land, and affidavit of posting, not filed until June 1, recites that fact without stating that the copy was posted "in a conspicuous place" on the land, and recites that the premises "are" unoccupied. A copy of the notice was also published in the official newspaper and affidavit of publication filed on June 1. No redemption was made, and the deed was issued on June 3, 1929.

On September 9 Aronow tendered to the county treasurer $295, with the offer to pay any additional sum necessary to redeem the property, which tender was refused. At the time of trial, Aronow offered to pay into court any sum necessary to cover all taxes, interest, penalties, and charges due the county, to be held for the use and benefit of the county and to abide the decision of the court; by stipulation actual deposit was waived.

The primary questions raised by defendant's specifications of error are as to whether or not the deeds mentioned are void by reason of fatal defects in the tax sale proceedings, or for like defects in the proceedings for securing the deed, and as to whether or not the curative Act of 1929 rendered the deeds valid. The only questions we need here determine are as to the effect of the attempted tax sale to the county on October 1, 1929, the recital of that fact in the certificate of sale and in each of the deeds, and as to whether or not the cited curative Act validated the deeds.

It is contended that Chapter 1, Laws of 1923, authorized the[1, 2] sale on the last-mentioned day, but this cannot be the law. While the relief measure of 1923 prohibited the sale of property "until October 1, 1923," it did not authorize the treasurer to strike off property to the county on that day, but, on the contrary, declared that "all existing laws of the state relative to the place and manner of sale * * * shall apply and cover said tax sales made on said date." The "existing laws" to be applied require the treasurer to designate the "time and place" (sec. 2185, Rev. Codes 1921), and provide the "manner" of conducting the sale as follows: "On the day fixed for sale, or on some subsequent day to which he may have postponed it, * * * the county treasurer * * * must commence the sale of the property advertised" etc. (Sec. 2189.) "But in case there is no purchaser * * * on the first day that the property is offered for sale, then when the property is offered thereafter for sale and there is no purchaser * * * the whole amount of the property assessed must be struck off to the county." (Sec. 2191.)

Chapter 1, Laws of 1923, merely postponed the first day of the sale from "the day fixed for the sale" to October 1, on which latter day the treasurer was required to comply with the provisions of section 2191, which provisions were redeclared by Chapter 46, Laws of 1923.

The provision of section 2191, above, is interpreted to require an offer of the property on the first day of sale, and, if no bid is made therefor, a second offer on a subsequent day, when, if again there is no bidder present who will make an offer for the property, and then only, must the property be struck off to the county, and, it is held, a sale of the property to the county on the first day of sale is void and renders a deed based thereon invalid. (Rush v. Lewis and Clark County, 36 Mont. 566,93 P. 943, and 37 Mont. 240, 95 P. 836.) The deeds under consideration are therefore void, unless the defect on the face of each has been cured by legislation.

Chapter 85, Laws of 1927, is entitled "An Act Providing for[3] the Validating of Tax Sales and Deeds Heretofore or Hereafter Made," but it merely prohibits an attack upon a tax deed, for such a defect as is here presented, after the expiration of one year subsequent to its issuance, and has no effect upon such deeds in a suit instituted within the year, and therefore is not applicable here.

Chapter 31, Laws of 1929, amending section 2191, above, contains no provision as to when it shall go into effect, and therefore became operative on July 1, 1929. (Sec. 90, Rev. Codes[4] 1921.) This Act purports to validate "certificates of sale" issued to counties, notwithstanding certain "irregularities" therein, and makes no mention of tax deeds. Whether such defects as the deeds under consideration contain may be termed "irregularities" only, and whether or not the legislature could cure defects in a certificate of sale which has become functus officio by reason of the issuance of the deed, we need not now determine.

The defect challenged appears on the face of each of the deeds[5] before us. In considering Chapter 50, Laws of 1909, similar in effect to Chapter 85, Laws of 1927, above, this court has declared that instruments void on their face "are not deeds but nullities," and therefore the Act does not apply to an action to set aside such a deed. (Cullen v. Western M. W. Co., 47 Mont. 513, 134 P. 302; Horsky v. McKennan,53 Mont. 50, 162 P. 376; Lindeman v. Pinson, 54 Mont. 466,171 P. 271.) By a parity of reasoning, a curative statute relating only to "irregularities" in the certificate of sale is inapplicable in a suit to set aside a so-called tax deed void on its face. It follows that the court erred in holding the defect cured by the Act.

However, Chapter 85, Laws of 1927, above, provides that in[6] such an action as this the purchaser may, on affidavit, require the person claiming to own the property to deposit in court, for the use of the tax purchaser, the amount of all taxes, interest, and penalties which would have accrued if the property had been legally taxed and sold for delinquent taxes and "was about to be redeemed" by the owner, with other charges enumerated, all to be included in an order of court, and requires the payment into court within thirty days. If the amount be not paid as directed, the court is authorized to enter decree quieting title in the tax purchaser, regardless of defects, irregularities, or omissions in the deed. If the amount be paid into court and the plaintiff fail to establish the tax deed as valid, the amount so paid goes to reimburse the tax purchaser.

With reference to Aronow's tender of the amount due the county, it was stipulated on the trial that "it may be understood at this time that it is not necessary for the parties at this time to deposit in court the amount of taxes, penalties, costs and interest due as of September 9, 1929, or as of this date, and that judgment of the court may be given to the same effect as if the deposit had been made at this time."

This stipulation is tantamount to a compliance with the above provisions, except that plaintiff waived immediate deposit, and defendant agreed to pay when called upon to do so, if decree should go for him.

There is some contention made that the amount for which the[7, 8] deed was issued is in excess of the amount then due the county, and, by computation in their brief, counsel for defendant attempt to demonstrate that such is the case; this is controverted by counsel for plaintiff. However, in attacking a tax deed it is necessary to point out clearly and specifically, and in apt terms, the particular defects on which the pleader relies to defeat the deed. (37 Cyc. 1514.) One who pleads in a suit for relief from a tax deed a tender of the amount paid by the purchaser cannot contest the validity of the tax for which the property was sold. (Conklin v. Cullen, 29 Mont. 38,74 P. 72.) Having specified in his pleadings the grounds on which he assailed the tax sale and deeds, without asserting that the amount claimed was excessive and thereafter tendered the full amount claimed by the county, defendant cannot now put the trial court in error on a matter not presented to it for determination on the trial.

The cause is remanded to the district court of Glacier county, with direction to determine, in accordance with this opinion, the amount due the county of Glacier for taxes, interest, penalties, etc., on the property described, and to direct the defendant to pay such amount into court for the use of the county within thirty days from and after such notice. If the amount directed be paid, the court shall quiet the title to the property described in the defendant Boris A.S. Aronow, and shall vacate the decree heretofore made. If such amount be not paid at the expiration of the period named, the judgment will be affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and ANGSTMAN concur.