Miller v. Murphy , 119 Mont. 393 ( 1946 )

I do not agree with my associates in holding that the notice of application for tax deed was insufficient for want of further description of the property.

The purpose of requiring notice of tax foreclosure proceedings is "(1) to warn the owner that his property is to be sold, so that he can prevent the sale by paying his taxes, and (2) to advise prospective purchasers, so that they can investigate the property and determine whether they want to bid. * * * The notice as a whole must be looked to in order to determine the sufficiency of the description; it is sufficient if it is such as will enable the owner and prospective purchasers to identify and locate the land to be sold with substantial certainty, and if it is not calculated to mislead. * * * Ordinarily, if the description is sufficient to notify the owner, it is sufficient to notify the public." (51 Am. Jur. "Taxation," sec. 1035.)

Here there is no proof that anyone was mislead by the description. An owner being served with this notice would know what was meant by the Housum Placer absent any showing that there was more than one Housum Placer in Missoula county. The owner knows better than anyone else whether he has paid his taxes on his interest in the Housum Placer and, if not, that his interest was sold for delinquent taxes and that it was his particular interest in the Housum Placer that was about to pass by tax title. It was of no moment to him that other interests in the same property were also passing. The fact that one 2/16th interest required a slightly different amount to be paid on redemption than the other 2/16th interest is of no moment under section 2214.2.

An uncertain description of property is sufficient if it can be made certain by reasonable investigation. Medaris v. Tracey,170 Okla. 113, 39 P.2d 30. And see note in 137 A.L.R. 191.

I think the majority opinion, so far as it holds that the notice of application for the tax deed did not sufficiently describe the property, substitutes form for substance. This case is not comparable to those relied upon in the majority opinion where a stated fraction of a larger tract of land or a certain number of acres in a larger tract was involved without a particular description of which acreage was involved. Here a specified undivided interest in the entire claim was involved and I do not believe it is necessary that the notice specify that it is the particular undivided interest which the owner acquired from Sam Brown where, as here, it involved the entire interest that the particular taxpayer had in the entire property.

The significance of this point rests in the fact that as to the Savage interests at least, if the description was sufficient, there was ample notice given under section 2209, Revised Codes. That statute when dealing with unoccupied property or a mining claim, as here, requires notice upon the owner only if he be known and then by registered mail if his address be known and, if not, by publication. Sutter v. Scudder, 110 Mont. 390, 103 P.2d 303. Upon the death of Sophia Savage the owner of the property could not be known until the estate was probated, much less the address of the owner. That being so, then under section 2209 it was sufficient that notice be published as was done here. The affidavit of service condemned in the majority opinion was good at least to the extent of proving that the land was vacant and unoccupied. The record shows an affidavit of the printer filed in the office of the county clerk showing publication of the notice referred to in the majority opinion.

As to the Cummings estate, certainly John L. Maloney as one of the devisees, and, hence as one of the owners thereof. could waive notice of application for tax deed so far as it affected his interest.

I think, too the judgment cannot stand for another reason. The owner of property not only has rights but with them go corresponding obligations. One of them is that he will pay taxes annually, not semi-centenially. This duty also devolves upon the executor and administrator. Sec. 2173, Rev. Codes; In re Kelley's Estate, 91 Mont. 98, 5 P.2d 559.

Katherine Cummings died in January, 1913, and probate of her estate was commenced in that year and is still pending. Sophia Savage died in 1905. Probate of her estate was commenced in 1916 and is still pending. This action was commenced in July, 1942, and it was not until the filing of the answer by Azelie A. Savage, the administratrix of the Sophia Savage estate on January 30, 1943, that any claim was asserted by the Savage estate to its 2/16ths interest and not until the filing of the answer by M.D. Flynn, executor of the Katherine Cummings estate on February 13, 1945, that any claim was made to the 2/16ths interest in the Cummings estate. Missoula county acquired a tax deed to the property on June 12, 1925; Maloney purchased the property from Missoula county in April, 1926; the deeds were placed on record in 1927 and Maloney has paid the taxes on the property ever since; Maloney did not himself apply for and receive the tax deed. He purchased from the county. I think the claims asserted by the executor and administratrix are barred by sections 9015, 9016 and 9019, Revised Codes.

True, the property was not surrounded by a fence and Maloney did not occupy it to any great extent. The property being mining property there was no object in fencing it. Mining property is frequently not easily accessible and is generally unoccupied unless it is actually worked. Actual occupancy or fencing of the property would not have brought home to the executor and administratrix the adverse claim nearly so effectively as the recording of the deed and the paying of the taxes.

I think Maloney "hoisted his flag" over this property by placing the tax deed of record and paying taxes thereon for some 18 years. I do not see how it can be said that he is presumed to have been acting all these years for the benefit of himself and others called co-tenants when he announced to the world by filing of his deed that he was acting for himself only. Reasonable inquiry by the administratrix and executor or by the heirs would have dispelled any presumption that he was acting for anyone other than himself. I think that the statutory rule that, "Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact has constructive notice of the fact itself, in all cases in which, by prosecuting such inquiry, he might have learned such facts", (Sec. 8781, Rev. Codes) has application here. The law requires that all owners of property take notice that taxes are due annually and that if not paid the property will be sold. As to taxes deliquent in November, the property will be noticed for sale in December following and as to that delinquent in May, the property will be noticed for sale in June following. (Sec. 2182, Rev. Codes.)

A prudent person bent upon saving his property from passing by tax title, at least every decade or so, when he does not pay the taxes, should make inquiry concerning it from the public officials or examine the records regarding it. I think section 8781 charges the executor and administratrix with notice of the filing of the tax deed more than ten years before the assertion of any claim by them here.

Had the executor and administratrix or the heirs whom they represent examined the records, the optimistic surmise that perhaps some charitable co-tenant was paying the taxes for their benefit would have been completely dissipated by the cold, hard facts there appearing that the taxes were being paid and other acts of ownership were being exercised by one who held adversely with a deed on record showing that he held the property of the Cummings and Savage estates by virtue of a deed from Missoula county. Chargeable with knowledge of what the record disclosed for these many years, the duty devolved upon them to act within ten years or be forever barred.

I concede, of course, that ordinarily the possession of one co-tenant is possession by all and that mere possession of a co-tenant is not sufficient to constitute adverse possession, but as stated above, Maloney had his deed from the county of record and it is my view that the executor and administratrix and the heirs of the Cummings and Savage estates are chargeable with knowledge thereof beacuse of section 8781 so as to come within the rule stated in 1 Am. Jur. 826, relied upon in the majority opinion.

It should be noted that in this case each separate co-tenant was separately assessed and taxed for his separate interest in the property. Had the mine been assessed as a unit, then some of the elementary principles of law relating to the rights and obligations of co-tenants announced in the majority opinion would have application. But here, since each co-tenant was assessed separately on his separate interest in the property, there is no room for application of most of the principles affecting co-tenancies referred to in the majority opinion. The court in Cocks v. Simmons, 55 Ark. 104, 17 S.W. 594, 29 Am. St. Rep. 28, which is one of the cases cited in support of the statement from 1 Am. Jur. 826, relied upon in the majority opinion, made particular reference to this distinguishing feature by saying, "As the interest of the co-tenants were assessed, taxed, and sold together, the sale was occasioned alike by the default of each party. Whether either might have paid his pro rata of the tax, and, upon the sale of the other's undivided interest, purchased it, is a question not presented nor considered."

Here the assessment and tax being separate as to each interest of each co-tenant, the cases supporting the general rules as to co-tenancies have no application. Under facts such as we have each co-tenant pays his tax and his only, and default in the payment by one cotenant subjects only his interest to tax sale proceedings.

I do not believe the executor and administratrix may sit by for these many years, permit the porperty to be sold for delinquent taxes, allow another to deal with the property as his own and having a tax deed on record for more than 18 years during which time he was paying the taxes and doing everything that an owner would and could do in attempting to have the property developed as a mining property, without being barred by limitations under sections 9016, 9017 and 9019, and without being guilty of laches.

Rehearing denied January 3, 1947.