                                    No. 87-408

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1988



JAMES W. BALL and DORIS E. BALL,
                  Plaintiffs and Respondents,
         -vs-
DONALD GEE a/k/a NORMAN JIMMY NANALOOK,
                 Defendant and Appellant.




APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Neil Haight, Montana Legal Services, Helena, Montana
         For Respondent :
                  Clary   &   Clary; R.F. Clary, Jr., Great Falls, Montana
         For Amicus Curiae:
                  Margaret M. Joyce Johnson and Robert P. Goff, Church,
                  Harris, Johnson & Williams; Great Falls, Montana



                                        Submitted on Briefs:   July 21, 1988
                                          ~ ~ ~ i d ~ d : 27, 1988
                                                  September

Filed:   SEP 2 7 1988'


                                        Clerk
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


      James W. Ball and Doris E. Ball brought an action
pursuant to 1985 MCA in the District Court, Eighth Judicial
District, Cascade County, to quiet title on real property
based on a tax deed they had procured from the County.     In
the course of the proceedings, the District Court on May 18,
1987 entered an order that Donald Gee, as the true owner [the
statute (section 15-18-401 (1)(b)(1985), MCA) 1 describes the
record owner of the real property when the taxes become
delinquent as the "true owner" to deposit in court the amount
of $11,041.43 on or before June 10, 1987.      No deposit was
made by Gee. On August 6 , 1987, the District Court entered
its decree quieting title to the real property in James W.
Ball and Doris E. Ball (purchasers).
      The decree is fixed solely upon the court's finding,
under S 15-18-402 (1) (1985), MCA, that since Gee had not
deposited the amount stated, he is "deemed to have waived any
defects in the tax proceedings and any right of redemption,
and therefore, irrespective of any irregularities, defects,
omissions or total failure to observe any of the provisions
of the statute of Montana regarding the assessment, levying
of taxes or sale of property for taxes" the purchasers were
entitled to a decree quieting their title as against Gee.
      Gee has appealed to this Court on the grounds that the
purchasers improperly claimed items of costs to preserve the
property or to make improvements thereon while in their
possession.   We agree and reverse and remand for further
proceedings.
      At all times important here, Gee has been a federal
prisoner, incarcerated in a prison outside the state of
Montana.   He filed by mail on May 18, 1987, his handwritten
"Answer to Order to Show Cause" in the District Court. He
further filed a written affidavit in support of his answer.
In his affidavit he stated that he had a tenant on the prop-
erty who was supposed to pay the property taxes in place of
rent; that the purchasers were aware that he was a prisoner
at the U.S. Penitentiary in Marion, Illinois; and that he
received no notification of the application for tax deed. He
also denied the sum the purchasers claimed for preserving or
improving the property.
      The answer and affidavit were not accompanied by a
filing fee. Gee did not appear in person, nor was he repre-
sented by counsel at the May 18, 1987 hearing.
      In the course of the May 18 hearing, the District Judge
noted that since the filing fee was not paid, there was
nothing filed from Gee as of that date, but since Gee was
acting pro se, the court would give him the benefit of the
doubt. However, the court then stated because the filing fee
was not paid the answer would not be considered as filed.
      The order to show cause and make a deposit was issued
to Gee upon the application of the purchasers, supported by
an affidavit of James W. Ball, dated April 29, 1987, that the
total of sums reasonably paid by purchasers after the date of
the tax deed in preserving the property or making improve-
ments was $4,919.18.    However at the show cause hearing of
May 18, purchasers claimed $8,158.54 as the amount they had
expended in preserving the property or making improvements.
The claimed amount was supported by exhibit 1, which Mrs.
Ball candidly on testimony at the hearing stated included "a
refrigerator and a range for the kitchen, cabinets for the
kitchen, carpeting and shower cabinets, toilet, the whole
works."   The exhibit itself includes items for advertising
for an application for tax deed, mailing costs, grass mowing
costs, and the cost of a title search for the purposes of the
quiet title action.       While some of these items might have
been recoverable as court costs in the event of an eventual
judgment in their favor, they are demonstrably not sums
"reasonably paid by the purchaser     .   .. after three years
from the date at the tax sale to preserve the property or to
make improvements thereon while in the purchasers' posses-
sion."    (Section 5 - 1 8 - 4 0 ( a (     (1985), MCA.
       The provision of 5 15-18-401, MCA, that the true owner
must deposit sums paid by purchasers to preserve the property
or to make improvements thereon after three years from the
date of the tax sale, was first enacted in this state as
Chapter 85, Law of 1927.          The provision was construed in
Shull v. Lewis and Clark County (1933), 93 Mont. 408, 19 P.2d
901.    There it appeared that the tax purchaser claimed an
amount for deposit, a part of which really belonged to the
county, and not to the purchaser. The court found that the
only amount that the purchaser might lawfully demand to be
deposited in court was that amount which he would be entitled
to receive in the event the tax deed was set aside. It said:
             ..
             .     whereas here, the order requiring
             a deposit embraced items which the party
             demanding the deposit had no right to
             receive in the event the tax proceedings
             be set aside, plaintiff may decline to
            make the deposit and raise the question
             on an appeal from the judgment entered
             for default in so doing.
93 Mont. at 418, 19 P.2d at 903.
      Moreover, under 5 15-18-402 (4) (19851, MCA, errors may
be reviewed on appeal from a final judgment in a quiet title
action based on a tax deed.
      On that basis, we reverse the decree of the District
Court and remand the cause for further proceedings.
      Gee filed in the District Court his affidavit to
proceed in forma pauperis, which was never acted upon. The
District Court felt compelled, because of the mandatory
provisions of S 15-18-402, MCA, to enter a decree in the
purchasers' favor. When the cause arrived in this Court on
appeal, because of the problem created by the pro se appear-
ance of Gee, Montana Legal Services Association procured the
services of Margaret M. Joyce Johnson, and Robert P. Goff, of
the law firm of Church, Harris, Johnson and Williams in Great
Falls to appear and file briefs as amicus for the appellant
Gee. The amicus brief raises the question whether the statu-
tory deposit requirement is unconstitutional as applied since
it prohibits a defense by an indigent person simply because
he or she is unable to meet the deposit requirement and
because it extinguishes the indigent person's redemption
rights as well as any objections of the true owner to the
procedures used to obtain the tax deed. We do not address
that problem at this point, because on remand a proper
deposit may be made.   If the deposit is not made because of
indigency, the question of constitutionality of course could
be raised in the first instance before the District Court.
Moreover, nothing in S 15-18-402 (1985), MCA, forecloses the
true owner from cross-claiming against the purchasers for
usurpation of possession prior to the expiration of the time
of redemption, if such occurred. A purchaser at a tax sale
without more has no right of possession to the real property
until three years following the date of the sale of the
property at the tax sale.     Section 15-18-403 (1985), MCA.
      Accordingly, the decree quieting title in the purchas-
ers is reversed, and the cause is remanded to the District
Court for further proceedings.
a 6 4 ,& t L 4 -
     Justice
