Ross v. First Trust & Savings Bank

MR. JUSTICE ANGSTMAN

(dissenting) :

I agree that this case, so far as the validity of the tax deed is concerned, is governed by the case of Lowery v. Garfield County, decided June 24, 1949, but I was not able to agree with the majority in that case and for the reasons set forth in my dissenting opinion in that case I disagree with the majority in this case so far as it holds that the tax deed is invalid.

Like the Lowery Case, here too the property in question was vacant when the tax deed was applied for. Also here as there the affidavit recited that notice was served upon all parties interested, followed by the manner of service, by publication and registered mail to Dennis, the actual owner, which actually in effect negatived the existence of an occupant. Here as in the Lowery Case the owner of the land, Mr. Dennis, was properly served with notice of application for the tax deed. The land was vacant and unoccupiéd. No one else was entitled to notice. The statute was actually fully complied with in the giving of notice and the filing of proof thereof. Dennis and Smith are partners and have been for many years and Smith has no greater rights than Dennis. I think the tax deed is valid.

Whether Chapter 100, Laws of 1943, has application in view of the fact that the plaintiff brought this action within two years after the enactment of that statute but where the validity of the tax deed was first questioned by the cross complaint filed after the two-year period named in Chapter 100, and whether .the defense is barred by sections 9015 to 9026, R. C. M. 1935, pleaded in the reply, I express no opinion, since those questions are not considered in the majority opinion. To the extent that the majority have followed the holding of the Lowery Case on the validity and effect of Chapter 100 I disagree with it for the reasons set out in my dissenting opinion in that case.

On the question of estoppel I agree with the principle that a vendee is not estopped from attacking the validity of the title of the vendor after he has surrendered possession to the vendor, but the question before us is, may one buy property from another today and tomorrow be heard to say that he himself was the owner before he undertook to buy it. I agree however with the result announced in the majority opinion on the question of estoppel. The authorities support the view that a person is not estopped who is ignorant of matters of law as to “the formalities requisite for the validation of a transaction” or “the formalities requisite for the validity of procedural acts.” 19 Am. Jur., “Estoppel,” sec. 141, p. 795.

To say that defendants are estopped from questioning the validity of the tax title is to impute to them knowledge of the law relating to tax titles and knowledge of the procedural intricacies requisite to establish a valid tax title — subjects concerning which lawyers and judges trained in law and with the open books before them entertain widely divergent views. It would not be fair or reasonable to impute to a layman knowledge of the law on these subjects when not even lawyers and judges agree what it is.

I think defendants had the right to assume that the county acted properly in obtaining the tax title. The fact that they did so ■ and became tbe purchasers of the property ought not to prevent them from later asserting the invalidity of the tax title when shrewd counsel in their behalf explored the procedure followed and with the aid of powerful lens, uncovered what the majority of this court thinks was a jurisdictional defect in the proceedings. But since it is my opinion that the tax deed was valid I think the judgment should be reversed and the title quieted in plaintiff.