Mitchell v. Garfield County

I concur in the result reached in the foregoing opinion with respect to the appointment of plaintiff as trustee.

I think the tax deed was valid. Plaintiff's predecessors in interest were served with notice of application for the tax deed and hence plaintiff is not in a situation to rely upon the case of Small v. Hull, 96 Mont. 525, 32 P.2d 4. As in the Lowery case, decided June 24, 1949, and the Ross case decided July 13, 1949, the lands in question were unoccupied. The complaint in this action invited in all unknown persons claiming an interest in the property and no one coming under the head of an occupant of the property is asserting any interest by reason of not having been served with notice of application for the tax deed. What I said in my dissenting opinion in the Lowery and Ross cases has equal application to this case on that point as well as on the validity of Chapter 100, Laws of 1943.

There is an additional reason why I think the judgment appealed from here should be reversed. Here as to some of the land the tax deeds were issued in 1939 and as to the others in 1941. As against plaintiff who stands in the shoes of those who had proper notice of application for the tax deed, section 2214, R.C.M. 1935, barred his action within one year after the issuance of the tax deed. Hence section 2214 barred plaintiff's action here before Chapter 100, Laws of 1943, was passed. As before stated, Small v. Hull and kindred cases cannot be counted on by one situated as plaintiff here who stands in the shoes of one who had proper notice of application for the tax deed.

Defendant Mysee, it should be noted, pleaded the bar of section 2214, R.C.M. 1935, and I think that plea was good.

The trial judge, it should be noted, held that Chapter 100, Laws of 1943, was not a bar to plaintiff's action because the grantee did not take possession of the land and thus exhibit to the original owner his hostile claim. Since the majority opinion does not treat of that question there is no occasion to consider it here.

Under section 2214 possession is unnecessary as against one who had proper notice of application for the tax deed. Compare Small v. Hull, supra.

I think the judgment appealed from should be reversed.