Van Voast v. Blaine County , 118 Mont. 375 ( 1946 )

I concur in the majority opinion, which is based upon the proposition that the trial courts' finding that "the said lands were not occupied and the plaintiff was not occupying said lands on April 22, 1939, and thereafter during the time when Blaine County was giving notice of application for Tax Deed thereto * * *."

In my opinion the action should be dismissed on an additional ground. The cause of action attempted to be stated in the complaint is based upon the supposed right of the plaintiff, as the alleged occupant of the land, to sixty days' notice of application for tax deed, "and a sixty-day period of redemption, as provdied by section 2209, R.C.M., 1935." The prayer of the complaint asks judgment, inter alia, that the county treasurer be directed to advise plaintiff of the correct amount "to be paid by plaintiff to redeem said land from the tax sale thereof made on July 26, 1939, and that upon the payment thereof to the proper fiscal officer of Blaine County, this court by decree order that said land has been lawfully redeemed by the plaintiff herein from said tax sale, and that plaintiff's title to said land, upon the payment thereof, be quieted."

It is clear that the plaintiff had no title to be quieted. It is equally clear, I think that plaintiff was never entitled to redeem from the tax sale. He is not embraced within the classification of perons entitled to redeem under the provisions of sections 2201 and 2209, Revised Codes. The person seeking to redeem must bring himself within the provisions of the redemption statutes. State ex rel. Federal Land Bank v. Hays, 86 Mont. 58,282 P. 32. The manifest purpose of the legislature in requiring such service upon the "occupant," was to further insure that such notice reach the persons entitled to redeem from the tax sale. It follows, I think, that the requirement of service upon the occupant is for the benefit of the persons entitled to redeem, and not of the occupant, unless he be included within that classification. It is my view, that since the plaintiff is neither the owner of any title to the land, or of any such interest therein as would entitle him to redeem, he has no such direct interest therein as would permit him to attack the tax deed proceedings or to question the validity of the deed. See Despard v. Pearcy, 65 W. Va. 140, 63 S.E. 871, 872 wherein it is said: "To set aside a tax deed the complainant must show in himself title to the land or right to redeem. If he has no title to the land, or right to redeem it he has no equity enabling him to disturb a tax deed in relation to it." See also Cline v. Bailey, 85 W. Va. 139,101 S.E. 171 Black on Tax Titles, 2d Ed., sec. 430, 542; McCarthy v. Union P. R. Co., 58 Wyo. 308, 131 P.2d 326.