Cullen v. Western Mortgage & Warranty Title Co.

MR. JUSTICE SANNER

delivered the opinion of the court.

On November 4, 1911, the respondent, Matthew Cullen, brought this action as plaintiff against the American Mining Company, Ltd., H. H. Stackpole, Carl Kleinschmidt, Albert Kleinschmidt, George F. Hale, Alfred W. Hale, Mattie F. Curtis, John G. Brown, Reinhold H. Kleinschmidt, Western Mortgage & Warranty Title Company, and Anna Davenport, to quiet the title of respondent to an undivided 4/15 interest in what is called the Narragansett Lode. The complaint is in the simple form alleging ownership of such interest in the plaintiff; that the defendants named claim some -estate or interest adverse to him, and that the claims of defendants are without right.

The defendants American Mining Company, Ltd., H. H. Stackpole, Carl Kleinschmidt, George F. Hale, Alfred W. Hale and Anna Davenport defaulted. Separate answers to the complaint were filed as follows: By the Western Mortgage & Warranty Title Company, denying that plaintiff has any interest in the property, alleging ownership of the whole of said property and that the Western Mortgage & Warranty Title Company and its predecessors in interest had been in the quiet *520 and peaceable possession thereof since January 20, 1902, asserting that plaintiff and the other defendants named claim, but without right, some interest in the property, and praying that the title of the Western Mortgage & Warranty Title Company in the same be quieted; by Mattie F. Curtis, disclaiming any knowledge of plaintiff’s claim and asserting an undivided 1/48 interest in the property; by John G. Brown, disclaiming any interest in the property, and alleging that he had conveyed all his interest to the Western Mortgage & Warranty Title Company; by Reinhold H. Kleinsehmidt, disclaiming any interest in the property, and alleging that he had conveyed all his interest to the Western Mortgage & Warranty Title Company; by Frank H. Cooney, substituted in place of George F. Hale, admitting plaintiff’s interest as asserted, denying any daifa thereto, denying that the Western Mortgage & Warranty Title Company is the owner of the property or has any interest therein, save an undivided 1/48 interest, and alleging an undivided 3/20 interest by conveyance from George F. Hale. The plaintiff replied to the answer of the Western Mortgage & Warranty Title Company, denying its claim, and also replied to the answer of Mattie F. Curtis, disclaiming any knowledge as to hers. On July 8, 1912, Lucina S. Wadsworth filed her complaint in intervention, asserting ownership to an undivided 2/15 interest by virtue of the last will^and testament of Samuel H. Stuart, deceased, admitting the asserted claims of plaintiff Cullen, of defendant Curtis and of defendant Cooney, and also that John H. Johns owns a 1/24 interest, the American Mining Company an 11/30 interest, and the Western Mortgage & Warranty Title Company a 1/48 interest, and denying that the Western Mortgage & Warranty Title Company is the owner of the property or of any interest therein greater-than a 1/48. On July 10, John H. Johns filed his complaint in intervention, asserting ownership of a 1/24 interest in the property, admitting the asserted claims of plaintiff Cullen, of defendant Curtis and of defendant Cooney, and also that the American Mining Company owns an 11/30 interest and the Western Mortgage & Warranty Title Company a 1/48 interest, but denying that the *521 Western Mortgage & Warranty Title Company is the owner of the property or has any interest therein greater than a 1/48.

On July 12, 1912, the above-named parties entered into a stipulation to submit the cause to the court upon the following agreed facts: That in 1892 the title to the property in question stood of record and was in fact vested in Alfred W. Hale (an undivided 7/60), George F. Hale (an undivided 7/60), Matthew Cullen (an undivided 4/15), Samuel H. Stuart (an undivided 2/15), and the American Mining Company, Ltd. (an undivided 11/30); that save as affected by the tax deed hereinafter referred to, the title so remains, except that in or since 1905 the above interests of Alfred W. Hale and George F. Hale became vested in John H. Johns (an undivided 1/24), Mattie F. Curtis (an undivided 1/48), Western Mortgage & Warranty Title Company (an undivided 1/48), and Frank H. Cooney (an undivided 3/20), and that the above interest of Samuel H. Stuart became vested in Lueina S. Wadsworth as his executrix and devisee; that in 1897 the property was assessed to Samuel H. Stuart and S. H. Stackpole for back taxes for 1891, 1892, 1893 and 1894, and such not having been paid, the property was on February 12, 1898, after due and regular notice, offered for sale and a certificate of sale was issued to Silver Bow county for all property offered for sale on February 12, 1898, a list of which, attached to the certificate, included the property in question ; that said property was redeemed from said sale on August 9, 1911, by Beinhold H. Kleinschmidt and whatever interest he thus acquired was before the commencement of this action conveyed to the Western Mortgage & Warranty Title Company; that in 1898 the property was assessed to “American Mining Company et al.,” taxes were levied and became delinquent, and on January 27, 1899, after due and regular notice, it was offered for sale and a certificate of its sale was issued to Lee Davenport; that on January 5, 1902, Lee Davenport filed with the treasurer his affidavit and notice of application for tax deed, and on January 28, 1902, a tax deed to said property was by the treasurer issued and delivered to said Davenport; that .whatever interest said Davenport acquired by virtue of said deed has be *522 come vested in the Western Mortgage & Warranty Title Company.

It does not specifically appear when the agreed statement of facts was filed; but on July 23, 1912, Mattie F. Curtis and John H. Johns filed their separate replies to the answer of the Western Mortgage & Warranty Title Company, in effect denying the claim of ownership asserted by it; whereupon the following proceedings were had in court: “This eause coming on this day regularly on argument upon the agreed statement of facts heretofore filed herein, the parties being represented by their respective counsel, * * * it was stipulated and agreed * * * that the answer of the Western Mortgage & Warranty Title Company on file herein should stand as the answer to the complaint in intervention of John H. Johns and to the separate answer of Mattie F. Curtis, and that the replies of John H. Johns and Mattie F. Curtis filed and entered herein on this day should be deemed replies to the said answer of the Western Mortgage & Warranty Title Company; thereupon Massena Bullard, counsel for the Western Mortgage & Warranty Title Company, moved the court for leave to file an amendment to the separate answer of said Western Mortgage & Warranty Title Company, setting up a third affirmative defense which said proposed amendment is in the words and figures as follows, to wit: ‘ Third: For a third defense: That the plaintiff’s cause of action is barred by the provisions of section 2654 of the Revised Codes of Montana of 1907, as amended by Chapter 50 of the Laws of the Eleventh Session of the Legislative Assembly of the State of Montana.’ To the granting of which amendment * * * counsel for adverse parties objected, * * * which objection * * * was by the court sustained, and an exception to the ruling of the court noted on the part of the Western Mortgage & Warranty Title Company. Thereupon the ease was fully argued by counsel for the respective parties and submitted to the court for consideration and decision and the case was by the court taken under advisement.” On September 9, 1912, the action was dismissed as to the defendant Carl Kleinschmidt; testimony was taken as to the defendants who had defaulted, *523 and a general finding was made by the court in favor of plaintiff Cullen, the interveners Wadsworth and Johns, and the defendants Curtis and Cooney, and against the defendant Western Mortgage & Warranty Title Company. The.judgment which was filed on September 10, 1912, decrees that the interests in the property are as follows: To plaintiff Cullen, 4/15; to intervener Johns, 1/24; to intervener Wadsworth, 2/15; to defendant Curtis, 1/48; to defendant Cooney, 3/20; and to defendant Western Mortgage & Warranty Title Company, 1/48. The costs of plaintiff, the interveners and the prevailing defendants are taxed against the Western Mortgage & Warranty Title Company, and it is decreed to be barred from asserting any claim to the property over and above an undivided 1/48 interest. From this judgment and from an order denying its motion for a new trial, the Western Mortgage & Warranty Title Company has prosecuted these appeals.

The principal question involved is the construction and application of section 2654, Revised Codes, as amended by Chapter 50, Session Laws of 1909. Section 2653, Revised. Codes, provides that the matters recited in the certificate of sale must be recited in the tax deed and that such deed, when duly acknowledged or approved, is prima facie evidence of certain things. Section 2654 as amended, provides that such deed, except as against actual fraud, is conclusive evidence of all other proceedings from the assessment by the assessor to the execution of the deed, ‘ ‘ and no action can be maintained to set aside or annul a tax deed, upon any ground whatever, unless the action is commenced within two years from and after the date of issuance of such tax deed; provided, that any existing right of action to set aside or annul any tax deed, heretofore issued, shall be barred unless instituted within two years from and after the passage of this Act.” (Sess. Laws 1909, p. 58.) It is argued by the respondent : (1) That the deed is void upon its face and therefore the above statute has no application; (2) that the sale to Davenport was void because at the time thereof, the property stood unredeemed from a previous sale to Silver Bow county; and (3) that the deed is void for want of jurisdiction in the treas *524 urer to issue it because of fatal defects in the affidavit of the purchaser. The appellant, contending that the deed is valid on its face, insists that error was committed in the admission and consideration of the certificate of sale to Silver Bow county (Exhibit “A”) and the affidavit and notice of Lee Davenport for the tax deed (Exhibits “C” and “D), on the ground that under the section above quoted the deed was conclusive as to every matter to which these exhibits could be relevant. Error is also assigned upon the refusal of the trial court to allow the amendment to the appellant’s answer wherein it was sought to plead section 2654 as a limitation.

1. The deed recites that the property was sold for taxes [1] upon an assessment to “American Mining Co. et al.” It is urged that this implies some knowledge or understanding upon the part of the assessor that others than the American Mining Company were owners and that since our statute requires that property subject to taxation be assessed to the owner, if known, or if not known, to “unknown owners,” the assessment is void, and if the deed shows such an assessment it is void upon its face. Were the question an open one in this state, the weight of authority might compel a recognition of the fact that the duty of the assessor was to assess to all the owners where they were known to or could readily have been ascertained by him, and that such an assessment as the one in question is- without validity. (McWilliams v. Gulf States L. & T. Co., 111 La. 194 , 35 South. 514 ; Norres v. Hays, 44 La. Ann. 907 , 11 South. 462 ; Asper v. Moon, 24 Utah, 241 , 67 Pac. 409 ; Clark v. Bragdon, 37 N. H. 562; Weiwreich v. Hensley, 121 Cal. 647 , 54 Pac. 254 ; De Frieze v. Quint, 94 Cal. 653 , 28 Am. St. Rep. 151 , 30 Pac. 1 ; Greenwood v. Adams, 80 Cal. 74 , 21 Pac. 1134 ; Pearson v. Creed, 78 Cal. 144 , 20 Pac. 302 ; Daly v. Ah Goon, 64 Cal. 512 , 2 Pac. 401 .) But the question is settled otherwise in this state by the provisions of section 2672, Revised Codes, and by the construction thereof as twice announced by this court, to the effect that when land is sold as the property of a particular person for taxes which have been correctly imposed upon the land, no misnomer or other *525 mistake relating to the ownership thereof affects the sale or renders it void, or voidable (Cobban v. Hinds, 23 Mont. 338, 349 , 59 Pac. 1 ; Birney v. Warren, 28 Mont. 64 , 72 Pac. 293 ), such mistake being in the nature of an irregularity or informality only. (Cobban v. Hinds, supra.)

We cannot seriously consider the proposition that the tax [2] deed is void because it does not state the year in which the assessment was made. Section 2653 required the deed to recite the matters that must be recited in the certificate of sale; and section 2641 requires the certificate to recite, among other things, the year of the assessment. The deed recites that the property in question “was subject to taxation for the year 1898,” and that it was duly assessed “for said year”; that the assessment for “said year” was duly equalized and the sum of $1.49 taxes was duly levied against it “for said year.” When it is remembered that the rule in this state is to assess in the year for which the taxes are payable, and that the assessment, equalization and levy all occur in the same year, it would be a refinement to say that the deed is silent as to the year of the assessment or the year in which the assessment was made. No set form of words is prescribed for the recital, and while the deed may not be perfect in phrase in this regard, it is not in the same condition as that condemned by the California supreme court in Simmons v. McCarthy, 118 Cal. 622 , 50 Pac. 761 . Protection to the delinquent owner against the taking of his property without due process of law does not go to the length of requiring that' tax proceedings “be criticised with microscopic nicety,” or that tax deeds shall be rejected for every insignificant departure from verbal precision. (Casey v. Wright, 14 Mont. 315 , 36 Pac. 191 .)

2. Concerning Exhibit “A,” the theory of respondent is that the property having been sold in 1898 to the county for delinquent taxes, it could not again be sold or exposed for sale until the period of redemption had expired, and therefore the sale in 1899 to Lee Davenport was void. Whether or not this exhibit was inadmissible in consequence of section 2654, we agree with the appellant that it should have been excluded on other *526 grounds. It shows upon its face that all the real property in [3] Silver Bow county the taxes upon which were then delinquent, though belonging to various owners, was sold at one time for a lump sum to Silver Bow county, “he being the person who would take the least quantity sufficient to pay the taxes, penalty,” etc. Such a sale has no validity (Casey v. Wright, supra; Rush v. Lewis & Clark County, 36 Mont. 566 , 93 Pac. 943 ), and could not constitute any obstacle to the proceedings of the following years. For reasons, however, which will presently appear, we do not deem the error in admitting this exhibit as of any consequence.

3. Since the deed was not invalid on its face, the question that next arises is whether Exhibits “C” and “D” were [4] properly admitted; in other words: Does the conclusive evidence clause of section 2604 preclude inquiry into the sufficiency of such proceedings as Davenport was required to take? This particular provision of section 2654 appears also as section 3898 of the Political Code of 1895, which was in force at the time the deed was applied for and given. At the same time and in the same chapter it was provided that no deed of property sold for delinquent taxes must be issued by the treasurer “until after the purchaser shall have filed” with the treasurer an affidavit showing that there had been served upon the owner of the property, or upon the occupant of it if it was occupied “a written notice stating that said property or a portion thereof, has been sold for delinquent taxes; giving the date of sale, the amount of property sold, the amount for which it was sold, the amount then due, and the time when the right of redemption will expire, or when the purchaser will apply for a deed.” (Secs. 3896 and 3895, Pol. Code of 1895.) Section 3895 also provided: “In case of an unoccupied property, a similar notice must be posted in a conspicuous place upon the property,” etc. Excellent reasons exist for the belief that these sections (secs. 3895, 3896, Pol. Code of 1896) were adopted from California; at all events, they are identical in substance with sections 3785 and 3787 of the California Political Code, and these, before the enactment of our Code of 1895, had been construed and applied *527 in several decisions of the supreme court of that state. If the construction given by the California court to the California sections is not in truth an integral part of our sections, it at least commends itself in principle, and the effect of these California decisions is that the conclusive evidence provision refers, and was intended to refer, to acts and proceedings required to be done and had at the hands of public officials'intrusted with the various steps leading up to the execution of a tax deed, and not to something required to be done by the applicant for the deed. (Miller v. Miller, 96 Cal. 376 , 31 Am. St. Rep. 229 , 31 Pac. 247 ; Reed v. Lyon, 96 Cal. 501 , 31 Pac. 619 .) The deed is not even prima facie evidence that the statutory notice was given. (Johnson v. Canty, 162 Cal. 391 , 123 Pac. 263 .) The question then remains whether the affidavit and notice were so [5] infirm as to affect the deed. The affidavit recites that Lee Davenport “on the 26th day of November, 1901, served by posting in a conspicuous place on said property, a written notice * * * of which a true copy is herewith attached.” The true copy attached to the affidavit bears date December 26, 1901. It is addressed “To American. Mining Co. et al.” The only designation of the property is the simple word “Naragansett,” and the amount “now due” is given as $3.59. Passing by such other questions as may be suggested by the disparity of dates and the paucity of detail in the notice, we think the affidavit was jurisdictionally defective because it shows service of notice by posting only, without any service upon the American Mining Company, one of the known owners, or upon any of the owners included in the designation “et al.,” and without any averment that the premises were unoccupied so as to authorize posting. Provisions such as appear in sections 3895 and 3896, Political Code of 1895, are a limitation upon the power of the treasurer to issue the tax deed, and render void any deed issued by him without requiring a compliance with them. The affidavit in particular is the basis upon which the treasurer is to act, and the conditions from which his power to issue the deed arises must appear by the affidavit. “If the affidavit shows that the notice was served upon any person other than *528 the one to whom the property was assessed, it must also show that the person so served was one upon whom the purchaser was authorized to serve the notice. If the service is not made 'upon the owner, it must be posted upon the property, if it is unoccupied; or, if it is occupied, it must be served upon the person occupying it. It is incumbent, then, upon the purchaser to show by his affidavit whether the property was occupied or unoccupied, and if occupied, that the person upon whom the notice was served was at the time occupying it.” (Simmons v. McCarthy, supra; Hall v. Capps, 107 Cal. 513 , 40 Pac. 809 .)

4. It is contended that unless section 2654, Revised Codes, [6] as amended, is a statute of inhibition or repose, and therefore applicable without plea, the amendment should have been allowed. A careful consideration of this statute fails to disclose that as to tax deeds before its passage, any question of public policy is involved, other than as such question is involved in all statutes of mere limitation; and instead of conferring a right where none existed before, the statute by its very language assumes an existing right, takes a remedy theretofore available as against an invalid tax deed issued before its passage, and changes the time within which that remedy may be invoked. A comparison of this situation with that disclosed in Franklin v. Franklin, 40 Mont. 348 , 20 Ann. Cas. 339, 26 L. R. A. (n. s.) 490, 106 Pac. 353 , or with that disclosed in Dolenty v. Broadwater County, 45 Mont. 261 , 122 Pac. 919 , will emphasize the distinction between such a provision as the one now before us and one in which time is part of the right of action. Way v. Hooton, 156 Pa. 8 , 26 Atl. 784 , contains some language in support of the conclusion that the statute in question is, as to tax deeds issued after its passage, a statute of repose, but that question is not before us. The argument assumes that the respondent had a right of action to annul or set aside appellant’s tax deed at the time the statute was enacted, and if, as we hold, the statute is one of limitation so far as such rights are concerned, it follows that advantage of it must be taken by plea in the answer.

*529 The record does not disclose what objections were made nor why the trial court declined to permit the amendment. [7] Respondent makes the suggestion that the statute applies only to actions “to set aside or annul a tax deed”; that this is not such an action but one to quiet title merely; hence the statute does not apply. In other words, a plaintiff seeking in fact to destroy the effect of a tax deed must confront the statute if he assail the tax deed as such, but, designing to accomplish precisely the same thing, he may avoid the statute by calling his action one to quiet title, declaring upon his ownership generally and demanding that his adversary appear and plead the tax deed. This is surely a subordination of substance to form; a thing is not changed by changing its name; where the sole object of an action is to get rid of a tax deed as a claim of title adverse to the plaintiff, we see no reason why it is not as much an action to annul or set aside such deed as though expressly so designated. In support of respondent’s position, 37 Cyc., pp. 1500 and 1501, is cited; but the decisions there collated seem rather to militate against the position taken. As we read them, the cases of Kipp v. Johnson, 31 Minn. 360 , 17 N. W. 957 , Flickinger v. Cornwell, 22 S. D. 382, 117 N. W. 1039 , Smith v. Sherry, 54 Wis. 114 , 11 N. W. 465 , seem to support the view that this action as it finally exhibits itself in the agreed statement of facts is subjeét to the limitational provisions of the statute in question.

But we cannot hold that reversible error occurred in refusing the leave to amend. While it is the policy of our law to permit amendments to pleadings in order that litigants may have their causes submitted upon every meritorious consideration that may be open to them (Rev. Codes, secs. 6588, 6589), and while it is the rule to allow, and the exception to deny, amendments (Leggat v. Palmer, 39 Mont. 302 , 102 Pac. 327 ; Flaherty v. Butte Electric Ry. Co., 43 Mont. 141 , 115 Pac. 40 ), yet they [8] are not at all stages of the proceedings a matter of right. After issue joined, the matter lies within the sound judicial discretion of the trial court, and an abuse of that discretion must *530 be made to appear before this court can say that a refusal of leave to amend was wrong. No showing whatever was made [9] by the appellant in support of his application; no explanation or excuse was offered for the delay in making the same. As we recall the oral argument, counsel for appellant stated that he had considered the necessity of pleading the statute and had deliberately chosen not to do so. At the time the application was made the appellant’s answer had been on file for something like four months and a half; the cause was before the court for argument; the parties had all agreed, some eleven days before, upon the facts which should be the basis of decision, and it is possible that had the amendment been allowed, further pleadings and additional delay might have been required. The statute of limitations, it is true, is an entirely legitimate defense, and no refusal of leave to amend could be justified solely because the amendment offered was the statute of limitations; but in view of the circumstances above mentioned, we do not feel warranted in saying that the court clearly abused its discretion in refusing the leave.

Rehearing denied September 20, 1913.

Such other questions as are discussed in the briefs of counsel are merely incidental. What has been written above disposes of the essentials of these appeals and requires that the judgment and order overruling the motion for new trial be affirmed. Ordered accordingly. Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.