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                                                                No. 98-668



                     IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                               1999 MT 80

                                                             294 Mont. 101

                                                              979 P.2d 163




ROSEANNE KNEEDLER,



Plaintiff and Appellant,



v.



LEAGUE WIDE, INC., a Montana

corporation; and JEFFERSON COUNTY,

MONTANA,



Defendants and Respondents.


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APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

Honorable Frank M. Davis, Judge Presiding.




COUNSEL OF RECORD:



For Appellant:



Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena, Montana



For Respondents:



Dee Ann Cooney, Utick & Grosfield, Helena, Montana

(Jefferson County)



J. Daniel Hoven and Kimberly L. Towe, Browning, Kaleczyc,

Berry & Hoven, P.C., Helena, Montana (League Wide, Inc.)


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Submitted on Briefs: April 1, 1999



Decided: April 20, 1999



Filed:




__________________________________________

Clerk



Chief Justice J. A. Turnage delivered the Opinion of the Court.



¶1. In proceedings before the Fifth Judicial District Court, Jefferson County,
Roseanne Kneedler (Roseanne), owner of a one-half undivided interest in a property
subject to a tax deed, sought to have the tax deed set aside for lack of proper notice.
The parties filed cross-motions for summary judgment. The District Court granted
defendant Jefferson County's (Jefferson County or the county) motion and dismissed
the complaint. We reverse and remand for entry of summary judgment in favor of
Roseanne.

¶2. The sole issue on appeal is whether the District Court erred in granting Jefferson
County's motion for summary judgment as to whether Roseanne was entitled under
§ 15-18-212, MCA, to notice of the issuance of the county's tax deed.

                                                           BACKGROUND


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¶3. The property at issue in this case is a one-acre parcel of land with a rustic cabin
located on a remote mining claim in Jefferson County, approximately five miles from
Clancy, Montana. Roseanne owns a one-half undivided interest in the property as a
tenant in common with John and Carol Kneedler (John and Carol or the cotenants).
The county assesses each tenant's undivided interest separately and sends separate
tax notices to each owner for one-half of the taxes assessed on the entire parcel.

¶4. John and Carol failed to pay their portion of the taxes in 1985, and the county
sent them a notice of delinquency. Notice of the tax delinquency was not sent to
Roseanne. A tax sale was held in September 1986, and Jefferson County was deemed
the purchaser of a tax lien against John and Carol's one-half interest in the parcel.
The county's tax sale certificate was never assigned. Taxes on the property remained
delinquent through 1989.

¶5. In January 1990, the county commissioners directed that a tax deed be issued to
Jefferson County for John and Carol's one-half interest in the property. Pursuant to
this directive, the county treasurer sent notice to John and Carol that a tax deed
would issue for their undivided interest in the property if the tax lien were not
redeemed within sixty days. Again, no notice of the impending tax deed was sent to
Roseanne.

¶6. A tax deed in favor of Jefferson County was executed in June 1990. In September
1990 and again in October 1990, the county offered its interest in the property for
sale at public auction but found no purchaser. Finally, in October 1991, Wide
League, Inc. (Wide League), purchased the county's interest in the property and an
undivided one-half interest in the parcel was conveyed to Wide League via a deed of
county land.

¶7. In April 1995, Roseanne filed this action challenging the validity of the county's
tax deed for failure to provide her with proper notice pursuant to § 15-18-212, MCA.
Roseanne and Jefferson County filed cross-motions for summary judgment on the
issue of whether Roseanne was entitled to notice either as an "interested party"
under § 15-18-111, MCA, or alternatively, as the current occupant of the property.
The District Court granted the county's motion and dismissed Roseanne's complaint
with prejudice. From this ruling, Roseanne appeals.

                                                             DISCUSSION


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¶8. Did the District Court err in granting Jefferson County's motion for summary
judgment as to whether Roseanne was entitled under § 15-18-212, MCA, to notice of
the issuance of the county's tax deed?

¶9. We review a district court order granting summary judgment de novo under the
same criteria as that used by the district court. Albert G. Hoyem Trust v. Galt, 1998
MT 300, ¶15, 968 P.2d 1135, ¶ 15, 55 St.Rep. 1230, ¶ 15. Under Rule 56(c), M.R.Civ.
P., summary judgment is proper only when the pleadings, depositions, answers to
interrogatories, affidavits and admissions on file show no genuine issues of material
fact exist and when the moving party is entitled to judgment as a matter of law.
Schmidt v. Washington Contractors Group, Inc., 1998 MT 194, ¶ 6, 964 P.2d 34, ¶ 6, 55
St.Rep. 814, ¶ 6.

¶10. Section 15-18-212, MCA, states in pertinent part that:

(1) Not more than 60 days prior to and not more than 60 days following the expiration of
the redemption period provided in 15-18-111, a notice must be given as follows:

(a) for each property for which there has been issued to the county a tax sale certificate or
for which the county is otherwise listed as the purchaser or assignee, the county clerk shall
notify all persons considered interested parties in the property and the current occupant of
the property, if any, that a tax deed may be issued to the county unless the property tax
lien is redeemed prior to the expiration date of the redemption period.

Under § 15-18-111(3), MCA, "an interested party" includes a mortgagee, vendor of a
contract for deed or the vendor's successor in interest, lienholder, or other person who has
a properly recorded interest in the property.

¶11. In its order and memorandum dismissing Roseanne's complaint, the District
Court concluded that Roseanne lacked standing to challenge Jefferson County's tax
deed because she did not qualify as an "interested party" under § 15-18-111, MCA,
nor as a current occupant of the property. The District Court reasoned that,
although the property was held in cotenancy, Roseanne was not an interested party
as to that portion of the property belonging to John and Carol because the taxes on
each undivided interest had been assessed separately. The District Court concluded
that the fact that each interest had been assessed separately was sufficient to
distinguish this case from earlier cases in which we held that where property is held

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in cotenancy, notice of issuance of a tax deed must be served upon every individual
co-owner. See Long v. Dillon (1984), 208 Mont. 490, 679 P.2d 772; Kerr v. Small
(1941), 112 Mont. 490, 117 P.2d 271; Fariss v. Anaconda Copper Mining Co. (D. Mont.
1940), 31 F. Supp. 571. As support for its conclusion that notice to cotenants is not
required where each tenant's interest has been taxed separately, the District Court
relied upon the rationale adopted by the courts of Colorado and Kansas in Jennings
v. Bradfield (Colo. 1969), 454 P.2d 81, 82, and Jesberg v. Klinger (Kan. 1961), 358
P.2d 770, 776.

¶12. As an initial matter, we note that the rationale adopted in Jennings and Jesberg
is not the law in Montana. In Dudley v. Higgins (1962), 141 Mont. 140, 375 P.2d 689,
we held that a cotenant is an interested party with the right to redeem property
subject to a tax lien even where the individual property interests have been assessed
separately for tax purposes. Although Dudley dealt with a one-half interest in a
patented mining claim rather than a cotenancy in real property, the redemption
statute at issue in Dudley was the predecessor statute to § 15-18-111, MCA, from
                                                                                   (1)
which Roseanne's redemption rights are derived. Both statutes employ language
which permits redemption by persons with an interest in the subject property.

¶13. In concluding that a cotenant possesses redemption rights notwithstanding that
each ownership interest has been separately assessed, the Dudley court reasoned that
a cotenant has "some interest in the property as a whole in addition to the legal
ownership of a portion thereof. That interest . . . may be only a desire that the
[current cotenant] be the cotenant to whom the redeeming respondent must account
or with whom the redeeming respondent must deal to bring about any plans for the
future of the property." Dudley, 141 Mont. at 142, 375 P.2d at 691. Because the
reasoning set forth in Dudley is fully consistent with the current application of § 15-
18-111, MCA, the District Court's reliance on contrary conclusions by the Colorado
and Kansas courts was in error.

¶14. More importantly, however, the District Court failed to address whether the
county's separate assessment of each undivided interest in this parcel was proper in
the first instance. Our review of the applicable statutory provisions reveals nothing
which would permit or authorize a county to tax an undivided interest in a jointly
owned piece of property separately from the interests of the other cotenants. To the
contrary, § 15-8-307, MCA, specifically requires that "land must be assessed in
parcels or subdivisions not exceeding 640 acres." There are some exceptions to the

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general rule that land be assessed in parcels--for example, § 15-8-511, MCA, provides
that each unit of a condominium may be assessed separately as a parcel of real estate
according to each owner's percentage of undivided interest in the entire project--but
we can discover no statutory basis to support Jefferson County's practice of
separately assessing individually owned but undivided interests in real property.

¶15. Not only is there no express statutory authorization for the manner in which the
county conducted its assessment, but this form of assessment infringes upon the
rights normally afforded to tenants of jointly owned property. A cotenant's right to
pay expenses associated with commonly owned property includes the right to pay
taxes before they become delinquent. See Dudley, 141 Mont. at 143, 375 P.2d at 691.
"Under well-known principles of law, payment of the taxes by any one of tenants in
common during the time of the cotenancy is considered payment of the taxes by all
cotenants." Miller v. Murphy (1946), 119 Mont. 393, 414, 175 P.2d 182, 193.

¶16. For the reasons stated above, we hold that the District Court erred in granting
Jefferson County's motion for summary judgment and dismissing Roseanne's
complaint for lack of standing under § 15-18-212, MCA. As co-owner of the
property, Roseanne was entitled to notice of the issuance of the tax deed, and her
right of redemption of this property continues indefinitely until such notice is given.
Section 15-18-111, MCA. Jefferson County's failure to provide Roseanne with proper
notice deprived the county of jurisdiction to issue a tax deed and renders the existing
tax deed utterly void. Isern v. Summerfield, 1998 MT 45, ¶ 28, 287 Mont. 461, ¶ 28,
956 P.2d 28, ¶ 28.

¶17. Because our holding with regard to Roseanne's right to notice as a cotenant of
the property is dispositive in this case, we decline to address whether Roseanne
qualified as a current occupant of the property for notice purposes.

¶18. We reverse the District Court's summary judgment in favor of Jefferson County
and order that summary judgment be entered in this matter in favor of Roseanne.



/S/ J. A. TURNAGE



We concur:
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/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

1. 184-4132 R.C.M. 1947, as cited in Dudley, stated: "A redemption of the property sold may be made by the
owner, or any party having any interest in or lien upon such property . . . ." This statute was recodified in nearly
identical form at § 15-18-101, MCA, in 1978. Section 15-18-101, MCA, was subsequently repealed in 1987 and
replaced with § 15-18-111, MCA.




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