Perry v. Maves , 125 Mont. 215 ( 1951 )

MR. CHIEF JUSTICE ADAIR:

Suit in equity to quiet title to a half section of land in McCone county. From a decree for plaintiff the defendants have appealed.

On October 7, 1918, the plaintiff Theodore Perry acquired title to the lands here involved and in the year 1931 he paid a part of the taxes assessed and levied against the lands but a part became delinquent and in July 1932 the land on which the taxes were delinquent was advertised for sale and struck off to McCone county. Subsequently the county assumed to convey the land to the defendant A. B. Maves and later A. B. Maves and his wife Nellie executed and delivered a deed therefor to the defendant Charley Maves.

Prior to commencing this suit the plaintiff Perry made due tender to the county treasurer of McCone county of the sum of money representing all taxes, interest and penalties owing upon the land and he stands ready, willing and able to pajr any and all sums found to be due or owing upon the final determination of this action.

The trial court made written findings of fact wherein it specifically found that the notice of application for the tax deed filed by the county clerk in the office of the county treasurer is defective; that it did not comply with the law then in force and that in consequence whereof the county treasurer was not authorized to issue the tax deed to McCone county.

The provisions of section 2212, Revised Codes of Montana 1935, were mandatory and prohibitory. One mandate was that an “affidavit must be filed by the treasurer * * in his office.” This mandate plainly required that an affidavit must be filed in the county treasurer’s office. Another mandate of the statute was that the affidavit so filed in the county treasurer’s office must show “that the notice hereinbefore required to be given has been given as herein required.” The notice so required to be given was the notice expressly provided for and required by section 2209, Revised Codes of 1935. The provisions of the statute (2212) expressly forbade and prohibited the issuance’ of a tax deed by the county treasurer until after the above mentioned affidavit had been filed in the county treasurer’s office. The prohibition was that no deed of the property sold at a delinquent tax sale must be issued by the county treasurer to the purchaser of the property until after such purchaser shall have filed with the treasurer an affidavit showing the required facts “which said affidavit must be filed by the treasurer as other files, papers, and records kept by him in his office. ’ ’ Emphasis supplied.

In the instant case the county clerk of McCone county, on March 14, 1940, made and filed in the office of the county treasurer an affidavit wherein he, inter alia, states: ‘ ‘ That on Feb. 13, 1940, the undersigned filed in the office of the County Clerk and Recorder of McCone County, Montana, an Affidavit and Proof showing the manner in which said Notice of Application for Tax Deed was given, all as provided by the laws of the State of Montana, to which Affidavit and accompanying proofs you are hereby referred.”

The affidavit provided for in section 2212, supra, must state the essential facts, as distinguished from mere conclusions, showing that the notice required to be given by section 2209, supra, has been given and until such affidavit was filed in his office showing such facts the county treasurer was denied the authority and power to issue a valid deed to the purchaser of the property so sold at delinquent tax sale.

Proceedings on tax sales are in invitum. Every essential or material step prescribed by the statute must be strictly followed. If the requirements of the statute are not strictly followed the sale may be avoided. In the county treasurer’s proceedings to sell the land there is no distinction recognized between the mandatory and directory requirements of the statute. The county treasurer must act as the statute directs. Otherwise he acts without authority and the purported sale which he assumes to make is invalid. This holds true even though the requirement with which the county treasurer failed to comply was not one enacted for the protection of the owner of the land.

In Jensen Livestock Co. v. Custer County, 113 Mont. 285, 295, 296, 124 Pac. (2d) 1013, 1018, 140 A. L. R. 658, this court held that “the county treasurer’s jurisdiction to issue a tax deed must rest upon the affidavits of service required by the legislature to be filed with him. ’ ’ There, speaking through Mr. Chief Justice Johnson, this court further said: “Furthermore the treasurer was or was not authorized to issue the deed. * * * Under the statute his jurisdiction arises solely from the affidavits of service which are filed with him, and not merely from the fact of service or from his knowledge of it otherwise than through the affidavits. * * * In other words, the treasurer has no jurisdiction to issue a tax deed until there has been filed with him ‘an affidavit showing that the notice hereinbefore required to be given has been given as herein required,’ etc. Cullen v. Western Mortgage & Warranty Title Co., 47 Mont. 513, 134 Pac. 302; Gallash v. Willis, 90 Mont. 148, 300 Pac. 569; Sanborn v. Lewis and Clark County, 113 Mont. 1, 120 Pac. (2d) 567. ‘In determining the sufficiency of tax title proceedings, the records alone can be considered and defects or omissions may not be corrected or supplied by anything dehors the record.’ Harrington v. McLean, 70 Mont. 51, 223 Pac. 912, 914; Fariss v. Anaconda Copper Mining Co., D. C., 31 F. Supp. 571, 576.

“This is necessarily so, since section 2209, after specifying how notices shall be given, provides as follows: ‘The owner of the property * * * has the right of redemption indefinitely until such notice has been given.’ Certainly ‘such notice’ does not mean ‘some notice’ or ‘any notice,’ and neither the county treasurer nor members of the judiciary may substitute their own ideas as to what notice should be considered the equivalent of or substitute for the notice required by the legislature.’’ Compare Lowery v. Garfield County, 122 Mont. 571, 208 Pac. (2d) 478; Ross v. First Trust & Savings Bank, 123 Mont. 81, 208 Pac. (2d) 490; Mitchell, v. Garfield County, 123 Mont. 115, 208 Pac. (2d) 497.

The • affidavit and notice of application for tax deed in the office of the county treasurer failing to show the required facts and, being fatally defective, failed to confer upon the county treasurer the jurisdiction, power or authority to issue the tax deed to McCone county as the trial court correctly found and held. The decree is affirmed.

ASSOCIATE JUSTICES BOTTOMLY and FREEBOURN, concur.