                                         No.     81-511

               I N THE SUPREME COURT OF THE STATE OF MONTANA




YELLOWSTONE INVESTMENT AND
DEVELOPMENT CO. , I N C , and     .
EDWARD L . BOND,

                                               P l a i n t i f f s and R e s p o n d e n t s ,



YELLOWSTONE COUNTY, MEFCO C O . ,
RAYMOND WEBER and BERNICE M. F R I E Z ,

                                               D e f e n d a n t s and A p p e l l a n t s .



Appeal from:            D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                        I n and f o r t h e C o u n t y of Y e l l o w s t o n e
                        H o n o r a b l e R o b e r t W i l s a n , Judge p r e s i d i n g .

C o u n s e l of R e c o r d :

        For Appellants:

               H a r o l d F. H a n s e r , C o u n t y A t t o r n e y , B i l l i n g s ,      Montana
               G a r y E . Wilcox, B i l l i n g s , M o n t a n a
               J o n e s , Jones and Work, B i l l i n g s , M o n t a n a
        For Respondents:

               S t e p h e n s and C o l e , B i l l i n g s ,    Montana


                                               S u b m i t t e d on b r i e f s :    A p r i l 15, 1 9 8 2

                                                                    Decided:         November 24,          1952

Filed:
            NOV 2 i; 1!l82"
! r Justice John C. Sheehy delivered the Opinion of the
 4.
Court.

     Yellowstone County appeals from a summary judgment
entered against it in the District Court, Thirteenth Judicial
District, Yellowstone County.    The summary judgment determined

that certain tax deeds obtained by the county were invalid.
We affirm the determination of the District Court.
     Edward L. Bond was the record owner of Lots 1, 6, 7 and
8 of Block 4 of Spring Valley Subdivision, Yellowstone

County, Montana, in the month of October 1979.   Back taxes

of $4,338.G4 were due for Lot 1, and $4,461.04 for Lot 8.

On August 22, 1979, the county clerk of Yellowstone County
made written notice of application for tax deed for the
lots, which written notice indicated that Bond's right of
redemption would expire on October 22, 1979, and that Yellow-
stone County as purchaser would apply for tax deeds on
October 23, 1979.
     On August 23, 1979, the county clerk mailed copies of
the notice of application for tax deed by certified mail, in
separate envelopes, one to Eond, addressed to him at 490
Indian Trail Road, Billings, Montana, and another notice to
L. A. Builders, Inc., at 206 N. 29th Street, Billings,

Montana.   The envelope addressed to L. A. Builders was
delivered on August 24, 1979, and the county received a receipt
acknowledging the receipt by L. A. Builders, Inc. of the
notice.    However, the certified mail envelope addressed to
Bond at 490 Indian Trail Road was returned "unclaimed" by
the post office.
     At the same time as the mailings, the county clerk
caused publication in the Laurel Outlook, a newspaper published
in Laurel, Montana, of a notice of application for tax deed
against L. A. ~uilders,Inc. and Edward L. Bond, which

written notices were printed and published on August 22 and
August 29, 1979.

     On October 11, 1979, Edward L. Bond deeded his interest
in the real estate here in question to Yellowstone Investnent
and Development Co., Inc., by filing deeds of record in the

office of the county clerk of Yellowstone County.
     On October 23, 1979, the county clerk executed a b~ritten
affidavit and proof of service in connection with the county's
application for tax deeds.     In the affidavit, the county
clerk recited that notice of application for tax deeds was

mailed to Edward L. Bond at 490 Indian Trail Road, in Billings,
Montana, and that the letter addressed to him had been
returned unclaimed.     The printed portion of the affidavit

recited "that the addresses used in mailing all the above
letters are the best and latest addresses obtainable for the
said persons, as disclosed by the County records of Yellowstcne
County, Montana."     The printed portion of the affidavit also
recited that the post office address of (the addressee's
name is left blank) was unknown and that therefore the

notice of application for tax deed had been served by
publication.
     On the sane day, October 23, 1979, the county treasurer
issued tax deeds to the county for the lots.

     On December 20, 1979, Yellowstone County sold its
interest in Lot 1 and Lot 8 of Block 4, Spring Valley subdivision,
to Mefco Company, in Billings, Montana.
     Yellowstone County on December 19, 1979, also sold Lot
7, Block 4, to Raymond Weber, and Lot 6, Block 4, to Bernice

M. Friez.
     On January 10, 1980, Bond and Yellowstone Investment
and Development Company, as plaintiffs, filed a complaint in
the ~istrictCourt of Yellowstone County, attacking the

issuance of the tax deeds to the county as invalid, essentially
on the ground that the notices of application for tax deeds
were insufficient.

        Both defendants Weber and Friez did not appear in the
action, and eventualiy default judgment was taken against
them.     All of the remaining parties moved the District
Court for surrmary judgment.

        Each of the parties submitted affidavits in support of
their respective motions for surrrnary judgment.   Yellowstone
and Mefco relied on the affidavits of the county treasurer
and the county clerk, who supplied from the records in
their offices the written instruments to which we have above
referred.
       Bond and Yellowstone Investment and Development Co.,
Inc. in support of their motion for summary judgment, supplied

the District Court with copies of their tax statements for
1979, each of which showed that the address of Edward L.
Bond was 347 Moccasin Trail in Billings, Montana.    Bond and
Yellcwstone Investment also relied on an affidavit of James
L.   Carbor,e, to the effect that he inspected the records in
the Yellowstone County clerk and recorder's office of many
deeds and mortgages and could not find Bond's address listed;

that he had insp~ctedthe Yellowstone County treasurer's office
for the tax statements for the years 1978 and 1979 and found
the address of Edward L . Bond to be 347 Moccasin   rail,
Billings, Montana; that he inspected the records of the
Yellowstone County assessor's office for 1978 and 1979,
where Bond's address was alsc listed as 347 Moccasin     rail,
Billings, Montana.
       An affidavit of Robert L. Stevens, Jr., the attorney
for the plaintiffs, was also relied on, which essentially
recited that Bond's Moccasin Trail address was available to
the county clerk within a few feet of his office.
     Edward L. Bond also supplied to the District Court his
affidavit to the effect that he had accidentally discovered
the pending application for tax deed in late September or
early October, 1979; that he had consulted an attorney and
had learned from him that the county could not secure a tax
deed until proper notice had been given; that he had gone to
the clerk and recorder's office to determine what he must do
to remove the property from jeopardy and that the clerk and
recorder would not accept tender of the taxes, interest and
penalties, hut also required the payment in full of all
unpaid special improvement district assessments.
     On July 22, 1981, the District Court entered an order
granting a summary judgment in favor of Bond and Yellowstone
Investment and Development Co., Inc. and denying the motion
of Mefco Co. for summary judgment.
     On August 3, 1981, the District Court entered judgment
in favor of the plaintiffs requiring the plaintiffs to
tender to the county all real estate taxes, interest and
penalties on the property, and that upon the tender and
receipt of those moneys, the tax deeds were to be canceled and
declared null and void.   The default judgment against Weber
and Friez was entered at the same time.
     Following the judgment, Mefco Co. and Yellowstone
County moved the District Court for a new trial.    In support
of their motion for a new trial, they provided the District
Court with copies of three deeds dated October 11, 1979,
between Edward L. Bond, as grantor and Yellowstone Investment
and Development Co., Inc. as grantee, relating to properties
other than those involved in the tax deeds, in which deeds
the address of Edward L. Bond is shown to be 490 1ndian
Trail, Billings, Montana.      The attorney for Bond presented
the District Court with a counteraffidavit to the effect
that the Indian      rail address was Bond's address when the
deeds were prepared in the early summer of 1979, and not
when the deeds were filed in October of 1979.
       The District Court denied the motion for new trial.
YelLowstone County only appeals from the judgment and the
denial of the motion for new trial.
       On appellate review of the validity of tax deeds,
certain rules guide us.     Notice of application of tax deed
to the owner, whether by mail or publication, is jurisdictional
to the validity of the tax deed.       Sanborn v. Lewis and Clark
County (1941), 113 Mont. 1, 120 P.2d 567.      Service by publication
of a notice of application for tax deed is valid only when
the address of the owner is unknown.       Section 15-18-202(3),
MCA.   Every.statutory step in the application for a tax
deed must be fully complied with.      Perry v. !'laves (1951),
125 Mont. 215, 233 P.2d 820; King v. Rosebud County (19811,

- Mont.         ,   631 P.2d 711.   The requirement that notice
for application be given applies to counties applying for
tax deeds.    In Lowery v. Garfield County (1949), 122 Mont.
571, 580, 208 P.2d 478, we said:
       "The statute requiring what notice shall be given
       and the filing of the affidavit are a limitation
       upon the power of the county treasurer to issue
       the tax deed and render void any deed issued
       by him unless and until the statutory requirements
       have been fully complied with. His authority to
       execute the deed must be shown in and appear upon the
       face of the affidavit. The giving of the notice is
       jurisdictional and unless the requirement of the
       law in respect to such notice is complied with and
       that fact established by the affidavit filed with the
       county treasurer, the tax deed may not legally issue.
       The validity of the tax deed depends upGn compliance
       with the statute authorizing its issuance and a
       tax deed issued by the county treasurer is void where
       the notice required by the statute is not given.
       (Citing cases. ) "
     Section 15-18-202(2), MCA, provides that a written

notice of application for tax deed shall be given to the
owner by registered or certified letter addressed to him at
the post office address of said owner "as disclosed by the
mortgage records in the office of the county clerk and
recorder."   Here the affidavit of Carbone establishes that

there was no post office address for Bond listed on any
mortgage on file in the county clerk's office.   The records
in the county treasurer's office and the county assesscr's
office shcw Bond as residing at 347 Moccasin Road.    His
assessment notices and tax notices for the years in question
were mailed to him at that address.   The county contends,

however, that the county clerk, when he made his affidavit
on October 23, 1979, for the issuance of the tax deeds,
could rely on the deeds which were filed on October 11,
1979, and upon the Polk's Billings City Directory, each of

which showed Bond's address to be 490 Indian Trail.   Aside
from the fact that the October 11, 1979 deeds and the material

from Polk's Billings City Directory were not presented to
the District Court until motion was made for new trial,
there is nothing in the record, either at the time of summary
judgment, or at the denial of the motion for new trial to
refute that the post office address of Bond on August 22 and
23, 1979, was on Moccasin Road.   If that were not the true
address of Bond on August 22 or 23, 1979, it was the duty of
the county, when the motions for summary judgment were pending,

to raise or demonstrate the existence of a genuine issue of
material fact.   The District Court is not required to anticipate
proof to establish a material substantive issue of fact.

Larry C. Iverson v. Bouma (1981),            ,
                                      Mont. - 639 P.2d
47,   38 St.Rep. 1911; State ex rel. Burlington Northern v.

District Court (1972), 159 Mont. 295, 496 P.2d 1152.
      The county also contends that since the letter to Bond
was returned unclaimed, his address then became "unknown"
and therefore service by publication was allowed.   Here the
record before the District Court at the time of the sumnary
judgment showed that the Indian Trail address was not Bond's
post office address at that time.   The return of the letter
unclaimed is not a sufficient ground upon which the county
could rely to contend that Bond's address was "unknown" even
though the affidavit and proof of service submitted by the
county clerk to the county treasurer for the issuance of the
tax deeds recites that the addresses used in mailing the
letters were the "best and latest addresses obtainable for
said persons, as disclosed by the county records of Yellowstone
County, Montana."    This obviously was not the case, for the
records of the county treasurer and the county assessor each
showed Bond's true post office address on the date of the
mailing of the notice.   The publication, therefore, of the
notice of application for tax deed by the county can have no
legal effect here.   The conclusion recited by the county clerk
in his affidavit that Bond's post office address was unknown
is obviously not in accord with easily ascertainable facts.
      However, the county also contends that under Bond's
affidavit, he had actual notice of the pending tax title
proceedings, and therefore any invalidity of the service of
notice upon him does not disturb the legal effect of the tax
deeds issued by the county.   That contention overlooks the

specific jurisdictional provisions of section 15-18-202(2),
MCA, that notice be delivered to the owner by registered or
certified mail where his post office address is known, and
t h a t u n t i l such s e r v i c e h a s been made t o a known p o s t o f f i c e

a d d r e s s , under s e c t i o n 1 5 - 1 8 - 2 0 2 ( 1 ) , MCA, t h e owner of t h e

p r o p e r t y h a s t h e r i g h t of redemption i n d e f i n i t e l y " u n t i l

such n o t i c e h a s been g i v e n . "         The a b o r t i v e a t t e m p t by t h e

c o u n t y t o s e r v e Bond by m a i l a t 490 I n d i a n T r a i l d i d n o t ,

and h a s n o t y e t , f o r e c l o s e d Bond's r i g h t t o redeem t h e r e a l

property.

        When t h e D i s t r i c t C o u r t g r a n t e d summary judgment i n

t h i s c a s e , t h e r e c o r d b e f o r e i t , based on t h e a f f i d a v i t s and

o t h e r m a t e r i a l s s u b m i t t e d , was c l e a r t h a t t h e p o s t o f f i c e

a d d r e s s o f Bond w a s 347 Moccasin Road and n o t a t 490 I n d i a n

T r a i l a t t h e t i m e o f n o t i c e and a p p l i c a t i o n f o r t a x deed.           It

was n o t u n t i l t h e p a r t i e s moved f o r a new t r i a l a f t e r t h e

summary judgment t h a t t h e deeds of October 11, 1979, and t h e

material i n Polk's Billings City Directory w e r e presented t o

the court.          I n making t h e i r motion f o r a new t r i a l , t h e c o u n t y

d i d n o t contend t h a t t h e new m a t e r i a l was "newly d i s c o v e r e d

e v i d e n c e " as t h e b a s i s f o r i t s motion.           I f i t had, b e c a u s e

t h e "new e v i d e n c e " w a s a t a l l t i m e s a v a i l a b l e t o t h e c o u n t y ,

and p e r h a p s i n i t s p o s s e s s i o n , t h e motion f o r t h e neT7 e v i d e n c e

would      have      to     be     d e n i e d on t h a t ground.          K a r t e s v.

K a r t e s ( 1 9 7 7 ) ' 175 Mont. 210, 573 P.2d 191.                     lloreover,

t h e c o u n t y d o e s n o t c o n t e n d , even now, t h a t t h e r e was a f a c t

i s s u e a s t o t h e t r u e p o s t o f f i c e a d d r e s s o f Bond.          The

c o u n t y r e l i e s on i t s c o n t e n t i o n t h a t t h e I n d i a n T r a i l a d d r e s s

was t h e p r o p e r a d d r e s s f o r s e r v i c e of t h e n o t i c e based on

t h e r e c o r d a s we have shown it h e r e .               O t h a t ground, t h e
                                                                n

county c a n n o t p r e v a i l .
        A c c o r d i n g l y , t h e surrmary judgment g r a n t e d by t h e ~ i s t r i c t

Court i s affirmed.
We Concur:
