                                                                                               11/21/2017


                                          DA 16-0769
                                                                                          Case Number: DA 16-0769

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 284



ZINVEST, LLC, a Montana limited liability company,

              Plaintiff and Appellee,

         v.

GUNNERSFIELD ENTERPRISES, INC.,
a California corporation,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DV-13-670B
                        Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Mark L. Evans, Axilon Law Group, PLLC, Bozeman, Montana

                        Elizabeth L. Griffing, Axilon Law Group, PLLC, Helena, Montana

                For Appellee:

                        W. Scott Green, Daniel Larry Snedigar, Patten, Peterman, Bekkedahl &
                        Green, PLLC, Billings, Montana



                                                    Submitted on Briefs: August 23, 2017
                                                               Decided: November 21, 2017


Filed:

                        __________________________________________
                                          Clerk

Justice Beth Baker delivered the Opinion of the Court.
¶1     In 2008, Gunnersfield Enterprises, Inc. purchased five condominium units and an

adjoining vacant lot. The deed was properly recorded and a Realty Transfer Certificate

was submitted to the Department of Revenue, which did not correctly update its

ownership records for the vacant lot. Gunnersfield received notice of and paid the tax

assessments for the five condominium units each year, but the Gallatin County Treasurer

continued to send the tax bills for the vacant lot to the previous owner. When the taxes

went unpaid, the Treasurer sold the lot for delinquent taxes. Zinvest, LLC acquired the

County’s interest. Gunnersfield now appeals the District Court’s determination to quiet

title to Zinvest. We reverse and remand, concluding that the Department of Revenue’s

defective property tax assessment voided the tax lien sale.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     In June 2008, Gunnersfield purchased five commercial condominium units, known

as Units 1 through 5, and an adjacent fenced lot, known as Lot 6A, from Prospero, LLC

in a single transaction.   A single Warranty Deed conveying all of the property to

Gunnersfield was recorded that same month in the records of the Gallatin County Clerk

and Recorder. The Department of Revenue (Department) received both a copy of the

deed and the Realty Transfer Certificate in 2008.        While the Department correctly

updated its ownership records for Units 1 through 5, it did not update the ownership

record for Lot 6A.

¶3     Gunnersfield paid all property tax notices it received from the Gallatin County

Treasurer (County) for the property. The notices it received, however, were for the five
                                         2
condominium units only. From 2009 through 2012, the County continued to send tax

bills for Lot 6A to Prospero, the former owner. Beginning in the second half of 2009 and

continuing in the subsequent years, the taxes for Lot 6A went unpaid. In July 2010, the

County offered a property tax lien for sale against Lot 6A for the 2009 delinquent taxes.

At that time there was no purchaser and the County was listed as the purchaser of the

lien.

¶4      In 2012, Zinvest, LLC became interested in the property and took action to acquire

the tax lien from the County. Zinvest sent the statutorily required notice of pending

assignment of the tax lien to Prospero, which the U.S. Postal Service returned

undelivered. Zinvest did not send notice to Gunnersfield. Upon Zinvest’s payment of the

delinquent taxes, interest, and fees, the County assigned its tax lien interest in the

property to Zinvest on October 9, 2012.

¶5      Zinvest then began the process to acquire a tax deed on the property. During this

process, Zinvest obtained a Litigation Guarantee from Stewart Title, which revealed that

the title to Lot 6A had vested in Gunnersfield in 2008. Zinvest sent a notice that a tax

deed may issue to Prospero, to Gunnersfield, and to the County. Gunnersfield admits that

it received this notice. In an affidavit from Jon Chaney, the President and majority

shareholder of Gunnersfield, Gunnersfield attested that it inquired with the County about

what property was at issue in the notice. The County office staff informed Gunnersfield

that the notice pertained to the property located at 153 Shepherd Trail, the street address

for the condominium building. Lot 6A has no street address. Gunnersfield maintains that

                                          3
it assumed the notice must relate to condominium Units 6 and 7, which it believed

Prospero still owned, because Gunnersfield had never been notified, and was unaware, of

any delinquent taxes on its own properties. In September 2013, when the period for

redemption expired, the County issued a tax deed to Zinvest.

¶6     Zinvest filed a quiet title action for the property in the District Court in October

2013. During this litigation, Zinvest’s attorney sent a letter to Gunnersfield requesting

that it sign a Disclaimer of Interest. Gunnersfield signed and returned the Disclaimer of

Interest, again believing that the proceedings related to Units 6 and 7, and not to Lot 6A.

The District Court granted final judgment and quieted title to Zinvest in May 2014.

¶7     Realizing its error in February 2015, Gunnersfield filed a motion for relief from

judgment with the District Court.         The court granted the motion and struck

Gunnersfield’s prior Disclaimer of Interest from the record, reasoning that it was “not

unreasonable” for Gunnersfield to assume that the proceedings did not pertain to its

property and that “negligence in this instance [was] excusable.” Following additional

briefing and argument, the District Court denied Gunnersfield’s motions for summary

judgment and granted Zinvest’s motion. It issued a final judgment on December 2, 2016,

quieting title to Zinvest.

                              STANDARDS OF REVIEW

¶8     This Court reviews a district court’s grant or denial of summary judgment de

novo. RN & DB, LLC v. Stewart, 2015 MT 327, ¶ 13, 381 Mont. 429, 362 P.3d 61. Like

the district court, we apply the criteria of M. R. Civ. P. 56(c)(3) to determine whether

                                         4
there is a “genuine issue as to any material fact” and whether “the movant is entitled to

judgment as a matter of law.” M. R. Civ. P. 56(c)(3); see also RN & DB, LLC, ¶ 13. If

there is no genuine issue of material fact, we review for correctness the district court’s

conclusion that the moving party is entitled to judgment as a matter of law. RN & DB,

LLC, ¶ 13.

¶9     We review de novo a district court’s interpretation and application of a statute.

Dick Irwin Inc. v. State, 2013 MT 272, ¶ 18, 372 Mont. 58, 310 P.3d 524.

                                     DISCUSSION

¶10    Whether the defective property tax assessment voided the tax lien sale.

¶11    It is undisputed that Gunnersfield properly recorded its deed to Lot 6A and that the

Department received the Realty Transfer Certificate, which showed correctly the

conveyance of Lot 6A from Prospero to Gunnersfield. It is also undisputed that the

Department continued to assess Lot 6A to Prospero, rather than to Gunnersfield; that

Gunnersfield did not receive any notices of taxes due on Lot 6A; and that Gunnersfield

paid all taxes due on the notices it did receive for Units 1 through 5. Gunnersfield argues

that, under these facts, the Department’s tax assessments on Lot 6A were invalid.

¶12    Among its arguments before the District Court, Gunnersfield contended that errors

in the tax assessment of the property invalidated the assessment and therefore rendered

void the tax deed to Zinvest. The District Court disagreed and held that, even though the

wrong party was assessed, the tax assessment was valid under § 15-8-201(4), MCA. The

District Court reasoned further that the language in the misnomer statute protecting tax

                                         5
lien sales, § 15-17-325, MCA, supported this understanding. It quoted two cases from

this Court in support—Cobban v. Hinds, 23 Mont. 338, 349, 59 P. 1, 2 (1899), and Meyer

v. Chessman, 132 Mont. 187, 192, 315 P.2d 512, 514 (1957).

¶13    On appeal, Zinvest argues that the District Court decided the case correctly and

that the tax assessments were procedurally proper. In support, it argues that the language

of §§ 15-8-201(4) and 15-17-325, MCA, as well as some of our prior case law, indicates

that taxation is an in rem proceeding, not an in personam proceeding. Zinvest thus

contends that a valid assessment does not require that the actual owner of the property be

assessed, as long as some individual person or entity is assessed for the parcel of property

at issue. Finally, Zinvest argues that it is the responsibility of taxpayers to exercise

diligence and ensure their property taxes are paid.

¶14    Title 15 of the Montana Code Annotated encompasses the statutes governing

taxation in the state of Montana. It prescribes a detailed process both for the assessment

and taxation of property and for the sale of property for unpaid taxes. The process

involves multiple steps and multiple levels of government. The Department of Revenue

is tasked with valuing all of the taxable property in the state and with maintaining the

database of ownership and property value information.            See §§ 15-7-101, -304,

15-8-101, -201, MCA.        Based on information from the Department, each taxing

jurisdiction calculates its own mill levy and submits it to the Department.             See

§§ 15-10-201, -202, MCA. The Department computes the taxes, fees, and assessments to

be levied and provides this information to each county’s clerk and recorder and treasurer.

                                         6
Section 15-10-305, MCA. The county treasurer in turn produces and mails the property

tax bills, collects the property taxes, and distributes the monies to the taxing jurisdictions.

Sections 15-16-101, -104, MCA. Failure to pay taxes can result in the county treasurer

taking actions under Title 15, chapter 17, MCA, to sell a tax lien on the delinquent

property, and, if the taxes remain unpaid, to issue a tax deed under Title 15, chapter 18,

MCA, which creates a new title extinguishing the interests of the original owner. Collier

v. Kincheloe, 2008 MT 100, ¶ 15, 342 Mont. 314, 180 P.3d 1157.

¶15     Property taxes are one of the primary and most stable means available to support

local government budgets. 5-39 Richard R. Powell, Powell on Real Property, § 39.02[1],

39-7 (Michael Allan Wolf ed., 2017). Failure to pay taxes is a serious breach of an

individual’s social obligations, and tax liens are a powerful tool to ensure payment.

Powell, supra, § 39.04, 39-37. But the tax lien statutes mandate many procedures that

must be strictly followed when a county takes action to sell a tax lien or issue a tax deed

“because a property owner’s fundamental interests are at stake in tax deed proceedings.”

Isern v. Summerfield, 1998 MT 45, ¶ 10, 287 Mont. 461, 956 P.2d 28. In fact, “[t]he

purpose behind the tax lien sales statutes is to protect property owners and their rights to

due process.” Zinvest, LLC v. Hudgins, 2014 MT 201, ¶ 20, 376 Mont. 72, 330 P.3d

1135.

¶16     The interests of the property owner also find protection in the tax assessment

statutes requiring that property taxes be assessed in the owner’s name. See 72 Am. Jur.

2d State and Local Taxation § 630 (2017).            Among the protections that the tax

                                           7
assessment statutes provide is to alert property owners to tax assessments levied against

them and their property. Such notice gives property owners the opportunity to dispute

the government’s valuation of their land, see § 15-7-102(3), (6), MCA; see also RN &

DB, LLC, ¶ 36, and helps to prevent any unwarranted property forfeitures through a tax

lien sale.   The latter purpose is evidenced in the fact that a valid assessment is a

foundational requirement for a county treasurer to have jurisdiction to sell a tax lien for

delinquent taxes. See Martin v. Glacier Cnty., 102 Mont. 213, 219, 56 P.2d 742, 744

(1936); see also Powell, supra, § 39.04[4], 39-48 (“All steps required of the public

authority for a properly levied tax assessment to arise are jurisdictional prerequisites for a

valid tax sale.”).

¶17    Although the entire process described above is often referred to as “taxation,”

there are distinct stages. “Assessment [is] the process by which persons subject to

taxation [are] listed, their property described, and its value ascertained and stated.

Taxation consist[s] in determining the rate of the levy and imposing it.” Vail v. Custer

Cnty., 132 Mont. 205, 214, 315 P.2d 993, 998 (1957) (quoting Hilger v. Moore, 56 Mont.

146, 165, 182 P. 477, 480 (1919)) (emphasis omitted). Under current law, assessment is

entirely the responsibility of the Department.          Collection and enforcement are the

responsibility of county treasurers. Gunnersfield argues that the errors of the Department

make the tax assessment invalid.1



1
  Gunnersfield also challenges other steps in the process, but we find it unnecessary to entertain
these arguments.
                                            8
¶18    The Department must assess property taxes to “the person by whom it was owned

or claimed or in whose possession or control it was at midnight of the preceding

January 1.” Section 15-8-201(2)(a), MCA. Even if the owner is absent or unknown, “the

department shall make an estimate of the value of the property.” Section 15-8-501(1),

MCA. But the statute elaborates that “[i]f the name of the absent owner is known to the

department, the property must be assessed in the owner’s name.” Section 15-8-501(2),

MCA.     Further, when property is sold and ownership changes, the Department is

statutorily obligated upon receipt of a Realty Transfer Certificate to update ownership

records used for the assessment and taxation of real property. Section 15-7-304, MCA.

¶19    The language of these provisions indicates that the Legislature intended to make

these protections mandatory: “the department shall assess property to . . . the person by

whom it was owned,” “the property must be assessed in the owner’s name,” and “[t]he

department is not required to change any ownership records . . . unless the department

has received a transfer certificate.”   Sections 15-8-201(2), -501, 15-7-304(2), MCA

(emphasis added). Indeed, in prior cases interpreting almost the exact same language in

predecessor statutes of §§ 15-8-201(2) and -501, MCA, this Court determined that the

language is mandatory in relation to both personal property and real property. See Birney

v. Warren, 28 Mont. 64, 67-68, 72 P. 293, 294 (1903) (“[T]he provisions . . . are

mandatory, and . . . require the assessor to assess personal property in the name of the

real owner.”); Vail, 132 Mont. at 214, 315 P.2d at 998 (quoting 3 Thomas M. Cooley, A

Treatise on the Law of Taxation § 1096, 2216-17 (4th ed. 1924)) (“‘An assessment

                                        9
should ordinarily be made to the owner of record, and statutes so provide in many

states . . . Such statutes are mandatory so that an assessment to one not the owner makes

the assessment void.’”).

¶20    Since those cases were decided our tax laws have been amended. The Department

was created in 1973, removing the responsibility for tax assessments from county

officers.   Along with updating §§ 15-8-201(2) and -501, MCA, to apply to the

Department rather than to county assessors, the Legislature added other responsibilities to

the Department, including § 15-7-304(2), MCA, which requires the Department to update

its ownership records upon receipt of a Realty Transfer Certificate. 1975 Mont. Laws

ch. 528, § 4, as amended 1993 Mont. Laws (Nov. 1993 Sp. Sess.) ch. 27, § 44. These

changes emphasize the importance the Legislature placed on the Department assessing

taxes to the owner of the property.

¶21    Zinvest relies, as did the District Court, on §§ 15-17-325 and 15-8-201(4), MCA,

to overcome the mandatory language of these statutes.          Section 15-17-325, MCA,

provides: “When a tax lien sale certificate is acquired, as provided [by the tax lien

statutes] and the taxes were properly assessed on the property of a particular person, no

misnomer of ownership or other mistake relating to ownership affects the sale or renders

it void or voidable.” In plain language, this statute makes clear that it offers no curative

effects unless the “taxes were properly assessed.” Section 15-17-325, MCA. The statute

cannot save an otherwise invalid tax assessment. Only the curative provision in the

assessment statute, § 15-8-201(4), MCA, could do so.

                                         10
¶22    Zinvest argues that the District Court properly relied on Cobban, 23 Mont. at

348-49, 59 P. at 2, in applying § 15-17-325, MCA. Cobban upheld a tax assessment on

the basis of the language in the predecessor statutes of §§ 15-8-201(4), -308, and

15-17-325, MCA. The predecessor to § 15-17-325, MCA, originally was passed in 1891.

The language of the statute remained largely unchanged until 1987 when the modern tax

lien statutes were enacted. 1987 Mont. Laws ch. 587, § 13. The original language in

force at the time of Cobban stated: “When land is sold for taxes correctly imposed as the

property of a particular person, no misnomer of the owner, or supposed owner, or other

mistake relating to the ownership thereof affects the sale or renders it void or voidable.”

See 1891 Mont. Laws 118. The modern statute differs in two important ways. First, the

Legislature removed the language “When land is sold for taxes” and replaced it with

“When a tax lien sale certificate is acquired.” This change means the modern statute now

applies to both real and personal property sold at a tax sale. This highlights the important

distinction we draw between § 15-17-325, MCA—which now applies to both real and

personal property—and § 15-8-201(4), MCA—which applies to real property only.

Second, the Legislature broke down the qualifier that taxes be “correctly imposed” into

two separate predicates: (1) the county must have followed the statutory tax lien

procedures; and (2) the Department must have “properly assessed” the taxes.             The

Legislature’s change in language indicates that the modern statute, § 15-17-325, MCA,

does not apply unless the tax assessment was proper.




                                         11
¶23    We next turn to the other misnomer statute, § 15-8-201(4), MCA. That provision

states that “[a] mistake in the name of the owner or supposed owner of real property does

not invalidate the assessment.” The provision is specific to a mistake in the name of the

owner rather than to a mistake in the identity of the owner. The statute says nothing

about assessing the property to the wrong person or entity entirely.

¶24    The Dissent puts much weight on the inclusion of “supposed owner” in

§ 15-8-201(4), MCA, in arguing that the statute excuses an assessment made to the wrong

person.   It cannot bear this weight.     “Supposed” carries connotations of belief that

something is probable or certain. The first definition of “supposed” in Webster’s Third

New International Dictionary is “believed to be or accepted as such.” See Webster’s

Third New International Dictionary 2298 (Philip Babcock Gove ed., 1971). The modern

statutes provide a process to inform the Department of ownership changes. Gunnersfield

followed this process. The Department did not “believe” Prospero was the owner, it

simply had failed to update its records. There is no basis for a “supposed owner” when

the process outlined in § 15-7-304, MCA, is followed and the Department is informed of

the actual owner. A “supposed owner” may exist if, for example, ownership changes and

the new owner fails to record his or her interest in the property and to file a Realty

Transfer Certificate with the Department. But these are not the facts of this case.

¶25    Our role in interpreting statutes “is simply to ascertain and declare what is in terms

or in substance contained therein, not to insert what has been omitted or to omit what has

been inserted.” Section 1-2-101, MCA. Section 15-8-201(4), MCA, does not include a

                                         12
mistake in ownership and we decline to insert it. Because the provisions requiring the

owner to be named are mandatory, and § 15-8-201(4), MCA, provides no cure for a

defect in the identity of the owner, a tax assessment to a person or entity other than the

owner, where the owner is known to the Department through properly recorded transfer

records, is not a valid assessment.

¶26    Comparing the language of §§ 15-8-201(4) and 15-17-325, MCA, further supports

this conclusion. Section 15-17-325, MCA, states “no misnomer of ownership or other

mistake relating to ownership affects the sale or renders it void or voidable.” This

language differs from the “mistake in the name” language of § 15-8-201(4), MCA.

Unlike the phrasing in § 15-17-325, MCA, the phrasing in § 15-8-201(4), MCA, does not

include language about mistakes relating to ownership. The language that appears in

these modern provisions was first adopted into Montana law in the same act of legislation

in 1891. See 1891 Mont. Laws 73, 78, 118. Because the enacting Legislature did not use

identical language in the two provisions, it is proper for us to assume that a different

statutory meaning was intended and that “mistake in the name” therefore does not include

“misnomer of ownership or other mistake relating to ownership.” See Gregg v. Whitefish

City Council, 2004 MT 262, ¶ 38, 323 Mont. 109, 99 P.3d 151 (“Different language is to

be given different construction.”); In re Kesl’s Estate, 117 Mont. 377, 386, 161 P.2d 641,

646 (1945) (citations and internal quotations omitted) (“It is a settled rule of statutory

construction that, where different language is used in the same connection in different

parts of a statute, it is presumed the legislature intended a different meaning and effect.”).

                                          13
¶27    The Dissent relies on Birney v. Warren to demonstrate that the statutes treat a

mistake relating to the ownership of personal property differently from a mistake relating

to the ownership of real property—that is, that such a mistake during the tax assessment

voids a personal property tax sale, but not a real property tax sale. Dissent, ¶ 49. Birney

voided a tax sale of personal property because the property was assessed to the wrong

entity. Birney, 28 Mont. at 67, 72 P. at 294. The Birney Court’s holding rested on two

grounds: (1) the language of the predecessor statutes to §§ 15-8-201(2) and -501, MCA,

which applies to both real and personal property, was “imperative” and thus mandatory;

and (2) the predecessor statute to § 15-17-325, MCA, which excused mistakes relating to

ownership, did not apply to personal property. Birney, 28 Mont. at 67-68, 72 P. at 294.

Tellingly, the Birney court did not rely on the predecessor to § 15-8-201(4), MCA, to

distinguish a mistake relating to ownership of real property, but relied only on the

predecessor to § 15-17-325, MCA.          Further, as discussed above, after the 1987

amendments to § 15-17-325, MCA, that statute now applies both to real property and to

personal property sold at a tax sale and requires “properly assessed” taxes. Section

15-17-325, MCA, is no longer a basis for a distinction between a mistake in the

ownership of real property as opposed to a mistake in the ownership of personal property.

And as we discussed above, § 15-8-201(4), MCA, does not cure a failure to name the

record owner at all.

¶28    Zinvest next argues that the tax assessment process and the subsequent tax lien

sale are in rem proceedings that require only that an individual or entity be assessed, not

                                        14
that the actual owner be assessed. Zinvest cites three cases in support: Meyer, 132 Mont.

at 192, 315 P.2d at 514; Sutter v. Scudder, 110 Mont. 390, 394, 103 P.2d 303, 305

(1940); and Cobban, 23 Mont. at 349, 59 P. at 2.

¶29    Zinvest’s argument that proceedings are in rem, rather than in personam, conflates

the tax assessment with tax enforcement.          Assessment is the responsibility of the

Department. Responsibility for enforcement lies with the counties. The error in the

present case occurred in the tax assessment itself. None of our prior cases have held that

the assessment itself is in rem. Vail, 132 Mont. at 213, 315 P.2d at 998 (“The tax sale is

the proceeding in rem.”); Meyer, 132 Mont. at 192, 315 P.2d at 514 (“[T]he tax sale is a

proceeding in rem against the property itself.”); Sutter, 110 Mont. at 394, 103 P.2d at 305

(“We hold that proceedings for the enforcement of a tax obligation when proceedings are

against the property . . . are in rem.”).

¶30    Further, Zinvest’s argument that the proceedings are in rem, rather than in

personam, is a distinction without a difference in this case. Characterization of the

assessment as in rem or in personam does not change the statutory requirements that

property be assessed to the owner.          See §§ 15-8-201(2), -501, 15-7-304(2), MCA.

Developments in in rem jurisprudence over the last forty years also support this position.

The United States Supreme Court has rejected the traditional justifications for

distinguishing between in rem and in personam proceedings. Shaffer v. Heitner, 433 U.S.

186, 212, 97 S. Ct. 2569, 2584 (1977) (requiring assertions of in rem jurisdiction to meet

the same requirements as assertions of in personam jurisdiction); Mennonite Bd. of

                                            15
Missions v. Adams, 462 U.S. 791, 796 n.3, 103 S. Ct. 2706, 2710 n.3 (1983) (holding that

a mortgagee with a legally protected property interest is entitled by due process to notice

of a tax sale and quoting Shaffer, 433 U.S. at 206, 97 S. Ct. at 2580, “An adverse

judgment in rem directly affects the property owner by divesting him of his rights in the

property before the court.”).      Our approach to interpreting the requirements of

§§ 15-8-201(2), -501, and 15-7-304(2), MCA, does not hinge on whether the proceeding

is in rem or in personam. Even if we were to hold that the tax assessment is an in rem

proceeding, this would not change our interpretation of the statutory requirements that

property must be assessed in the name of a known owner.

¶31    A closer look at the case law Zinvest cites convinces us that this conclusion is

correct. First, Meyer and Sutter are distinguishable. In Meyer, the parties challenged the

lack of notice before the county issued the tax deed. Meyer, 132 Mont. at 191, 315 P.2d

at 514. The case did not raise or address any alleged errors during the tax assessment. In

Sutter, tax assessment notices were sent to the record owner of the property, who had

passed away. Sutter, 110 Mont. at 392, 103 P.2d at 304. His heirs had neither gone

through probate in Montana nor taken any steps to record their interest in the property.

Sutter, 110 Mont. at 392, 103 P.2d at 304. The heirs challenged the tax sale because

they, as the current owners, had not received actual notice of the tax assessments. Sutter,

110 Mont. at 393, 103 P.2d at 305. We upheld the tax assessment as proper, however,

because the record owner, i.e., the “supposed owner”, was assessed and tax notices were

sent to the last known address. Sutter, 110 Mont. at 395, 103 P.2d at 306. We held that

                                        16
the heirs should have taken steps to properly record their interest and also that it was

“incumbent upon a property owner to take notice of the known fact that all property is

taxed annually, and unless the taxes are paid that the property will be sold at tax sale.”

Sutter, 110 Mont. at 395, 103 P.2d at 305.

¶32    Sutter counsels a different result under the facts of the present case. Gunnersfield

properly recorded its interest and a Realty Transfer Certificate was sent to the

Department to notify it to update its records. But the Department failed to assess the

owner of record, Gunnersfield.     Further, Gunnersfield paid the annual taxes on the

portion of the property for which it was assessed and therefore did not have notice that it

was not paying any annual taxes that were due.

¶33    The final case on which both Zinvest and the District Court relied is Cobban v.

Hinds. The language in Cobban suggests that the correct listing of the owner is a mere

formality and listing the lands to the wrong person during the tax assessment was not

grounds for voiding a tax sale. Cobban, 23 Mont. at 349, 59 P. at 2. Cobban is not

controlling for several reasons. First, as we discussed above, Cobban rested its holding

on three statutes, including the predecessor to § 15-17-325, MCA. The current language

of § 15-17-325, MCA, undermines Cobban’s holding relying on that statute. Further, the

tax assessment statutes also have been amended and now include § 15-7-304, MCA,

which obligates the Department to update ownership records when it is notified of real

property transfers. More, the plain language of the assessment statutes imposes a

requirement on the Department to assess land in the name of the owner.

                                        17
¶34    Second, our subsequent case law also has undermined the decision. In Musselshell

County v. Morris Development Company, 92 Mont. 201, 203, 11 P.2d 774, 775 (1932),

Roundup Coal Mining Company quitclaimed only the surface rights to Morris

Development Company and “reserve[d] to itself all coal and other minerals underlying

the surface.” Musselshell County, 92 Mont. at 203, 11 P.2d at 775. Thus, Roundup Coal

Mining Company retained a fee simple interest in the minerals in the ground.2 The

county assessed Morris Development for the mining claim but this Court held that

Roundup Coal Mining was the proper party to tax. Musselshell Cnty., 92 Mont. at

209-10, 11 P.2d at 777. This Court explained that “separate estates or interests should be

separately assessed to the respective owners” and declined to decide whether the

assessment against Morris Development would be valid for all purposes against Roundup

Coal Mining. Musselshell Cnty., 92 Mont. at 210, 11 P.2d at 777. Despite citing Cobban

and Cullen v. Western Mortgage & Warranty Title Company, 47 Mont. 513, 134 P. 302

(1913),3 the Musselshell County Court ordered that steps be taken to change the

assessment to the Roundup Coal Mining Comapny, “[t]o obviate any question regarding

2
  The Dissent challenges the applicability of Musselshell County because not all mining interests
are taxed as real property. Dissent, ¶ 46. As we explained in Rist v. Toole County, 117 Mont.
426, 434, 159 P.2d 340, 343 (1945), “the concept of royalty is very different from that of the
fee-simple title to minerals in place in the ground.” This Court clarified in Rist that royalty
interests are taxed as personal property, but fee-simple title to minerals in the ground is taxed as
real property. Rist, 117 Mont. at 442, 159 P.2d at 347. In Musselshell County, Roundup Coal
Mining Company retained a fee simple interest in the minerals underlying the surface and thus
the tax assessment at issue in that case was for real property taxes, not for personal property
taxes as the Dissent states.
3
   Upon review of our case law, we find few cases that have actually relied on Cobban to uphold
challenged assessments. To the extent that Cullen relies on Cobban and the predecessor to
§ 15-17-325, MCA, its continued validity on this point also is called into question by our
decision today.
                                             18
the validity of the assessment,” suggesting that even after Cobban the effect of mistaken

identity of the owner on the validity of a tax assessment remained an open question.

Musselshell Cnty., 92 Mont. at 211, 11 P.2d at 778.

¶35    Further, Cobban directly conflicts with the later decided case of Vail.4 Both cases

dealt with the propriety of the assessment of several parcels of land together without any

separation of the assessment between landowners who owned individual parcels. Vail,

132 Mont. at 208, 315 P.2d at 995; Cobban, 23 Mont. at 348, 59 P. at 2. But the two

cases arrived at opposite conclusions. The Cobban Court upheld the tax sale, ruling that

the single assessment of multiple properties with various owners was proper. Cobban,

23 Mont. at 348, 59 P. at 2. In Vail, however, this Court reaffirmed that taxes are levied

upon persons—not upon property—and invalidated the tax lien on the property. Vail,

132 Mont. at 213, 315 P.2d at 998. We held that an assessment made en bloc to an entire

development, rather than to the individual landowners within the development, was void.

Vail, 132 Mont. at 213, 315 P.2d at 998. To the extent that Cobban conflicts with Vail, it

implicitly was overruled. We decline to rely on any language in Cobban taken out of

context, especially when our decision in Vail and amendments to the statutes already

have undermined the foundation of Cobban and bring its continued validity into question.




4
   The Dissent correctly points out that Vail involved special assessments rather than property
taxes. Dissent, ¶ 46. However, in Vail, this Court analyzed the special assessments in the same
manner as property taxes and even relied on the predecessor to § 15-8-201, MCA, the general tax
assessment statute, in its analysis. Vail, 132 Mont. at 214, 315 P.2d at 998. We disagree that
Vail is distinguishable in a meaningful way.
                                            19
¶36    Finally, Zinvest argues that voiding the tax lien sale “would effectively absolve

the property owner from any level of diligence in the assessment process.” Zinvest is

correct that “it is incumbent upon a property owner to take notice of the known fact that

all property is taxed annually, and unless the taxes are paid that the property will be sold

at tax sale.” Sutter, 110 Mont. at 395, 103 P.2d at 306. But “[m]ore importantly, a

party’s ability to take steps to safeguard its interests does not relieve the State of its

constitutional [due process] obligation.” Mennonite Bd. of Missions, 462 U.S. at 799,

103 S. Ct. at 2712. There is nothing in the record to indicate that Gunnersfield had

reason to know that the Department was not assessing the taxes for Lot 6A to

Gunnersfield. During the time in question, the County taxed Units 1 through 5 together.

It was reasonable for Gunnersfield to believe—and the record lacks any evidence that

Gunnersfield believed otherwise—that its tax bill included Lot 6A, which was purchased

in the same transaction and was conveyed to Gunnersfield in the same deed. In fact,

when it received the notice from Zinvest that a tax deed may issue, Gunnersfield did

inquire with the County. This inquiry only buttressed Gunnersfield’s belief that the

notice did not pertain to its properties, because it had paid all tax notices it had received

and was unaware of any delinquent taxes on its properties.

¶37    We conclude that the tax assessment on Lot 6A was invalid. Because the tax

assessment was void, the subsequent tax lien sale and issuance of a tax deed also must be

voided. We require strict compliance with “every essential and material step required by

the tax deed statute.” Moran v. Robbin, 261 Mont. 478, 482-83, 863 P.2d 395, 398

                                         20
(1993). In order for a county treasurer to have the jurisdiction to sell real property for

delinquent taxes, “there must be (1) a valid assessment; (2) a valid levy; and

(3) nonpayment of the tax so duly levied and assessed.” Martin, 102 Mont. at 219,

56 P.2d at 744. The County lacked jurisdiction to hold the tax lien sale on the property

because there was no valid assessment. The subsequent tax deed issued to Zinvest is void

and its quiet title action must fail.

¶38    This does not mean that Gunnersfield is relieved from its tax obligations for Lot

6A. Under § 15-8-601, MCA, the Department may assess property for prior erroneous

assessments within ten years of the calendar year in which the original assessment was or

should have been made, “provided that the property is under the ownership or control of

the same person who owned or controlled it at the time it . . . was erroneously assessed.”

The taxes for Lot 6A were erroneously assessed starting in 2009, and the ten-year

limitation has not yet run.

                                        CONCLUSION

¶39    We reverse the District Court’s December 15, 2015 and October 22, 2016 orders

denying summary judgment to Gunnersfield, as well as the judgment quieting title in

Zinvest. We remand for entry of judgment quieting title in Gunnersfield.


                                                /S/ BETH BAKER



We concur:

/S/ MIKE McGRATH
                                          21
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE


Justice Laurie McKinnon, dissenting.

¶40    First and foremost, it is undisputed that Gunnersfield received actual notice of the

tax sale proceedings when it was identified as a potentially interested party in the title

report required by § 15-18-212(4), MCA.            Zinvest filed and mailed a notice to

Gunnersfield that a tax deed may be issued, dated June 17, 2013. Zinvest secured a tax

deed, filed a quiet title action, and received a Disclaimer of Interest in Lot 6A from

Gunnersfield. It was not until Zinvest listed the property for sale, eight months later, that

Gunnersfield realized its mistake. This Court’s decision, therefore, overturns a tax deed

sale in which the taxpayer admits to receiving notice of a tax lien, but then failed to

investigate; failed to act; and, ultimately, failed to timely discharge the tax lien. “The law

helps the vigilant before those who sleep on their rights,” § 1-3-218, MCA, and

Montana’s statutory taxation scheme is premised upon notice, process, and the near

universal recognition that every property is liable to a tax. While “[t]he purpose behind

the tax lien sales statutes is to protect property owners and their rights to due process,”

Zinvest, LLC, ¶ 20, the process is abused when the statutes are strictly complied with but

an exception is nonetheless made to enforcement. Zinvest and the County Treasurer

complied with all statutory requirements for Zinvest’s purchase of Lot 6A by tax sale.

Thus, where there has been strict adherence to the statutory scheme, as here, any

                                          22
concerns of due process and notice to the taxpayer regarding the necessity for discharging

an admittedly owing lien are unwarranted. Taxation and the sale of property for unpaid

taxes could never be effectively administered if we were to assess the merits of each

property owner’s individual inquiries regarding whether he or she owed taxes. “All

proceedings in the nature of assessing property for purposes of taxation and in levying

and collecting taxes thereon are in invitum and must be stricti juris.” Perham v. Putnam,

82 Mont. 349, 358, 267 P. 305, 309 (1928). Tax sales must be conducted in compliance

with the taxation statutes or they are void. Conversely, “no presumption can be raised to

supply defects in the proceedings for the sale[]” if there was strict statutory compliance.

Perham, 82 Mont. at 358, 267 P. at 309.

¶41    I am also concerned with the Court’s analysis regarding identification of the owner

for purposes of assessment. The Court misconstrues § 15-8-201(4), MCA, by omitting

any consideration of “supposed owner” and compounds the error by concluding that the

property was not “properly assessed” for purposes of § 15-17-325, MCA, a statute

generally providing that a sale is not to be voided by a misnomer of ownership. The

Court’s analysis is flawed through its failure to grasp a long-recognized statutory

distinction, and one similarly recognized in our case law, between assessments of taxes

on real property and assessments of taxes on personal property. Failure to appreciate this

distinction leads to our unprecedented action of “implicitly” overruling, and in some

instances expressly overruling, nearly a century of jurisprudence relying on and correctly




                                          23
interpreting this distinction. Opinion, ¶¶ 33-35, 34 n.3. In my opinion, this Court’s

decision to jettison over a century of precedent is both hasty and ill-advised.

¶42    Montana has long recognized a distinction between the assessment of property and

taxation of property. In Hilger, 56 Mont. at 165-66, 182 P. at 480, we said:

       When our Constitution was prepared and ratified, the term “assessment”
       and the term “taxation” each had a definite, well-understood meaning.
       Assessment was the process by which persons subject to taxation were
       listed, their property described, and its value ascertained and stated.
       Taxation consisted in determining the rate of the levy and imposing it. . . .
       This has been the history of our revenue legislation from the time Montana
       was organized as a territory, and the framers of our Constitution understood
       these words and used them accordingly.

Although the Court acknowledges this distinction by stating that “assessment is entirely

the responsibility of the Department” and “[c]ollection and enforcement are the

responsibility of County Treasurers,” Opinion, ¶ 17, the Court ultimately fails to

appreciate the significance of the distinction when it invalidates a tax sale (taxation)

based upon its conclusion that the Department erred by incorrectly identifying the owner

of real property (assessment). The Court first errs in concluding that the real property

was not properly assessed pursuant to § 15-8-201(4), MCA. The Court next errs by

assigning the purported error of the assessment to the County Treasurer’s tax sale.

¶43    To begin, the Department, pursuant to § 15-8-201(2)(a), MCA, is required to

assess property to “the person by whom it was owned or claimed . . . .” However, with

respect to real property, “[a] mistake in the name of the owner or supposed owner of real

property does not invalidate the assessment.” Section 15-8-201(4), MCA (emphasis

supplied). Section 15-8-201(4), MCA, is the first misnomer statute applicable to these
                                         24
proceedings and addresses identification of the owner for the purpose of assessment. The

Court’s first mistake is that it interprets § 15-8-201(4), MCA, as being “specific [only] to

a mistake in the name of the owner rather than to a mistake in the identity of the owner,”

and concludes that “[t]he statute says nothing about assessing the property to the wrong

person or entity entirely.” Opinion, ¶ 23. To the contrary, while such an interpretation

perhaps is consistent with assessments for personal property, the statute specifically

provides for other considerations when identifying the owner for purposes of assessing

real property.    The Court simply does not address the remaining language of

§ 15-8-201(4), MCA, “supposed owner,” which is likely that subsection’s most

significant distinction from § 15-8-201(2)(a), MCA, and the other misnomer statute under

consideration, § 15-17-325, MCA.       Significantly, the distinction amounts to this: a

mistake in the “supposed owner” of the real property will not invalidate the assessment

on real property, while the same is not true for personal property. Clearly, “supposed”

means that the property was assessed in one other than the owner. The “supposed”

owner is “[p]resumed to be [the] true or real [owner] without conclusive evidence”; the

“intended” owner; or the “firmly believed” or “expected” owner. The American Heritage

Dictionary of the English Language 1751 (Joseph P. Pickett ed., 5th ed. 2011). See also

Webster’s Third New International Dictionary, supra, at 2298, defining “supposed” as

“believed to be or accepted as such”; Merriam-Webster’s Collegiate Dictionary 1184

(Frederick C. Mish ed., 10th ed. 1997), defining “supposed” as “held as an opinion,”

“mistakenly believed,” or “considered probable or certain.”         A “supposed owner,”

                                         25
therefore, based on these common usage definitions, would include a person other than

the actual owner.

¶44   In Cobban, as the District Court recognized, an action by the treasurer to sell real

estate for taxes due was not invalidated because the assessment was in the name of one

other than the owner. Cobban, 23 Mont. at 350, 59 P. at 3. Moreover, our decision in

Cullen was informed by Cobban when we rejected the argument that an assessment was

void because it failed to name all the owners of the property.       We determined the

question “settled” by statute and “twice announced by this [C]ourt” 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 mistake relating to ownership thereof affects the sale

or renders it void, or voidable [citing Cobban and Birney], such mistake being in the

nature of an irregularity or informality only.” Cullen, 47 Mont. at 524-25, 134 P. at 305.

Although we recite § 1-2-101, MCA, and our role in interpreting statutes, Opinion, ¶ 25,

we fail to address the most relevant and significant distinction between § 15-8-201(2)(a)

and -201(4), MCA; that is, we ignore, by failing to give it any effect, the plain language

of the statute which provides that a mistake in the name of the “supposed owner” of real

property will not invalidate the assessment. Here, the “supposed owner,” Prospero, was a

mistake and, as the mistake relates to real property, it will not serve to invalidate the




                                        26
assessment. Had the assessment related to personal property, the same would not have

been true.1

¶45    The second misnomer statute at issue here is § 15-17-325, MCA. In contrast to

the real property distinction of § 15-8-201(4), MCA, § 15-17-325, MCA, applies to the

sale of all property, both personal and real property. Section 15-17-325, MCA, provides

that once taxes are “properly assessed on the property of a particular person, no

misnomer of ownership or other mistake relating to ownership affects the tax lien or

renders it void or voidable.” Thus, if the assessment is for property other than real

property, it must be assessed to the person by whom it is owned, § 15-8-201(2)(a), MCA.

See Birney, 28 Mont. at 68, 72 P. at 294; Vail, 132 Mont. at 214, 315 P.2d at 998.

Therefore, misnomers of ownership or other mistakes relating to ownership as set forth in

§ 15-17-325, MCA, do not raise concerns of due process or notice as the underlying

requirement for the property to be assessed to the person by whom it is owned,

§ 15-8-201(2)(a), MCA, has been satisfied.       Conversely, if personal property is not

assessed to the owner, then the property has not been “properly assessed” and the

provisions of the misnomer statute contained in § 15-17-325, MCA, are not implicated.

Importantly, and of critical significance to these proceedings, § 15-8-201(4), MCA, also

works in conjunction with § 15-17-325, MCA, applying the misnomer provision that a

mistake in the name of a supposed of real property does not render the property

1
   Section 15-8-501, MCA, to which the Court refers, Opinion, ¶ 18, is not relevant to these
proceedings as the owner was neither absent nor unknown. Again, the misnomer provisions of
§ 15-8-201(4), MCA, pertaining to “supposed owner” directs that a mistake in the name of the
real property owner, as here, will not invalidate the assessment.
                                             27
“[im]properly assessed.” The Court’s attempt to find authority for its conclusions by

referring to the “modern statutes” is unpersuasive, Opinion, ¶¶ 22, 24. The statutes,

applied together consistently, have always required personal property to be assessed in

the name of the owner, but the assessment of real property in the name of the supposed

owner, through operation of § 15-8-201(4), MCA, nonetheless remains valid. This Court

has, for over a century, recognized these statutory distinctions.

¶46    In Vail the dispute was whether Vail held title in fee or clouded by a lien of special

assessments for water charges. Vail, 132 Mont. at 207, 315 P.2d at 994. Vail did not

concern a tax on real property; Vail had earlier acquired the property by tax deed and

argued that the water district was late in collecting its special assessment fees. The Court

found that the special assessment must be made to the individual owners and relied on the

predecessor to § 15-8-201(2)(a), MCA, that to be a valid assessment it “must assess such

property to the persons by whom it was owned.” Vail, 132 Mont. at 214, 315 P.2d at 998.

The Court explained that “the charges made by irrigation districts are special assessments

not taxes, although they are administered and collected in the same general manner as

taxes. It is elementary that this requires assessment to individual owners by individual

ownership.” Vail, 132 Mont. at 214, 315 P.2d at 998 (citation omitted). Similarly, in

Musselshell County, relied on extensively by the Court, the assessment related to a

mining claim. We recognized that the added taxable interest of the mining claim to the

real estate “should be separately assessed” from the real property. Musselshell County,

92 Mont. at 210, 11 P.2d at 777. Rather than deciding whether the misnomer statute

                                         28
pertaining to real property also applied to the separate personal property interest of the

mining claim, the Court simply modified the judgment to reflect an assessment against

the owner of the mining claim. Musselshell County, 92 Mont. at 210-11, 11 P.2d at

777-78. This was also consistent with our subsequent explanation in Rist that “the

originator of the royalty is still the owner of the real property to which it relates, and that

the assignee’s interest is only in the ‘produce or profit’ therefrom,--namely, in the

personal property which the owner is to receive for the granted privilege of producing

minerals from his land.” Rist, 117 Mont. at 432, 159 P.2d at 342-43 (emphasis supplied).

Accordingly, Musselshell County does not establish that, like personal property, real

property must be assessed in the name of the actual owner. The Court in Musselshell

County avoided the issue by simply modifying the judgment to reflect that the assessment

will run against the true owner of the mining claim, as should an assessment for a

personal property interest. This was consistent with the requirement to assess personal

property in the name of the actual owner pursuant to § 15-8-201(2)(a), MCA, and does

not provide guidance regarding the relationship of the two misnomer statutes at issue

here.

¶47     In these proceedings, as in Cobban, both misnomer statutes, §§ 15-8-201(4)

and 15-17-325, MCA, must be applied consistently together, without confusing the

provisions of § 15-8-201(2)(a), MCA. Pursuant to § 15-8-201(4), MCA, which allows an

assessment against a “supposed owner,” the proceedings are against the property itself

and are, as the District Court found, in rem.            If the proceeding is pursuant to

                                          29
§ 15-8-201(2)(a), MCA, it is against personal property, or in personum, and must identify

the owner of the property. Our jurisprudence has expressly recognized such a distinction.

In Cobban, we stated:

       [I]t is plain that the listing of land in the name of a person other than the
       owner is but an irregularity or informality which, of itself, does not avoid
       the assessment nor render the tax illegal or unauthorized. The name of the
       owner of the real property is, for all purposes of taxation except perhaps the
       imposition of a personal liability, comparatively unimportant. . . . The
       listing of lands to the wrong person affords no ground for restraining the
       collection, by sale of the property itself, of the taxes due thereon.

Cobban, 23 Mont. at 349, 59 P. at 2-3 (internal citations omitted). Similarly, in Meyer

we held that “[t]he reason for the statute and the cases holding likewise is that the tax sale

is a proceeding in rem against the property itself and not in personum.” Meyer, 132

Mont. at 192, 315 P.2d at 514. Further, in Sutter we explained:

           Under our statutes property must be assessed in the name of the owner if
       known, but if unknown it must be assessed to unknown owners.
       (Sec. 2009, supra.) A mistake in the name of the owner or supposed owner
       does not affect the validity of the assessment. (Sec. 2002, Rev. Codes;
       County of Musselshell v. Morris Development Co., 92 Mont. 201, 11 P.2d
       774.) This points to the conclusion that in some respects at least the
       procedure for taxation of real property and enforcing collection of taxes is
       in rem and not in personam, and this court has so indicated in State ex rel.
       Freebourn v. Yellowstone County, 108 Mont. 21, 88 P.2d 6, as well as in
       Averill Machinery Co. v. Freebury Bros., 59 Mont. 594, 198 P. 130.
       Defendants assert that the Averill Case recognizes the proceedings as in
       rem only when the property is actually assessed to an unknown owner. We
       do not so interpret that case. They also rely upon the cases of Hilger v.
       Moore, 56 Mont. 146, 182 P. 477, State ex rel. Tillman v. District Court,
       101 Mont. 176, 53 P.2d 107, 103 A.L.R. 376, Ford Motor Co. v. Linnane,
       102 Mont. 325, 57 P.2d 803, and Christofferson v. Chouteau County,
       105 Mont. 577, 74 P.2d 427, as sustaining the view that tax proceedings in
       Montana are in personam. The opinions in those cases use language
       pointing to that conclusion. Those cases state that “taxes are levied against
       the person, not the property”; they do not treat of the precise question here
                                          30
       under consideration. While taxes may be levied against the person, there is
       no continuing personal obligation on the part of the owner, but the
       obligation is terminated when the tax lien is foreclosed. (Calkins v. Smith,
       106 Mont. 453, 78 P.2d 74.)
          We hold that proceedings for the enforcement of a tax obligation when
       proceedings are against the property, as here, rather than by suit under
       section 2253, Revised Codes, are in rem. If that were not so, it is doubtful
       whether taxes could ever be collected against a non-resident owner of
       property in this state. Proceedings to effect collection of taxes on real
       property by foreclosure of the tax lien are in rem and not in personam.

Sutter, 110 Mont. at 393-94, 103 P.2d at 305.

¶48    The two misnomer statutes under scrutiny here have existed in our law since 1887.

Section 46, an act to provide for the levy of taxes and assessment of property, provided:

“When any lands or town lots are offered for sale for any taxes, it shall not be necessary

to sell the same as the property of any person or persons; and no sale of any land or town

lot for taxes shall be invalid on account of its having been charged on the assessment roll

in any other name than that of the rightful owner or charged as unknown . . . .” In 1891,

and thereafter in 1895, similar statutes were enacted making it “plain that the listing of

land in the name of a person other than the owner is but an irregularity or informality

which, of itself, does not avoid the assessment nor render the tax illegal or unauthorized.”

Cobban, 23 Mont. at 349, 59 P. at 2. This Court recognized, as early as 1899, “[t]he

name of the owner of the real property is, for all purposes of taxation except perhaps the

imposition of a personal liability, comparatively unimportant.” Cobban, 23 Mont. at 349,

59 P. at 2. We drew from the authority of numerous other states in support of such an

interpretation: Landregan v. Peppin, 24 P. 859 (Cal. 1890); Haight v. Mayor of N.Y.,

1 N.E. 883 (N.Y. 1885); Merrick v. Hutt, 15 Ark. 331 (Ark. 1854); Trust Co. v. Weber,
                                         31
96 Ill. 346 (Ill. 1880); State v. Matthews, 40 N.J.L. 268 (N.J. 1878); Bradley v. Bouchard,

48 N.W. 208 (Mich. 1891); Hill v. Graham, 40 N.W. 779 (Mich. 1888); Stilz v. City of

Indianapolis, 81 Ind. 582 (Ind. 1882); Schrodt v. Deputy, 88 Ind. 90 (Ind. 1882); and

Strauch v. Shoemaker, 1 Watts & Serg. 166 (Pa. 1841). Accordingly, it was quite clear

that “the listing of lands to the wrong person affords no ground for restraining the

collection, by sale of the property itself, of the taxes due thereon. . . .” Cobban, 23 Mont.

at 349, 59 P. at 3. We explained that the tax statutes “prohibit courts and judges from

enjoining the collection of any tax, and from restraining the sale of the property for

nonpayment of any tax, except in those instances where the tax is illegal, or not

authorized by law, or where the property is exempt from taxation . . . .” Cobban, 23

Mont. at 349-50, 59 P. at 3.

¶49    Four years later, in 1903, this Court considered the effect on an assessment of a

mistake in the name of the owner of personal property and whether it differed from a

mistake in the name of the owner of real property. Birney, 28 Mont. at 64, 72 P. at 293.

The Court first examined the statute pertaining to assessment of land, which provided:

“[w]hen land is sold for taxes correctly imposed as the property of a particular person, no

misnomer of the owner, or supposed owner, or other mistake relating to the ownership

thereof, affects the sale, or renders it void or voidable.” Birney, 28 Mont. at 67, 72 P. at

294. Next, the Court applied the rule of interpretation “Expressio unis est exclusion




                                         32
alterius,”2 reasoning that a mistake in the name of the owner of real property does not

invalidate the tax, but that an assessment of personal property to a named person other

than the owner is absolutely void. Birney, 28 Mont. at 67, 72 P. at 294. While I do not

disagree with the Court’s final evaluation of Birney, that mistakes relating to ownership

of personal property are not excused, Opinion, ¶ 27; the significance of Birney for

purposes of this proceeding is that the Court reasoned that because the misnomer statute

at issue related specifically to real property, the same could not apply to mistakes in the

owner of personal property. A mistake in the owner of personal property, accordingly,

would invalidate an assessment.       Birney simply provides additional support for the

long-recognized distinction between mistakes in owners of real and personal property and

the corresponding effect on the validity of the assessment.

¶50    In my opinion, the foregoing historical precedent accumulated over the course of a

century demonstrates the Court’s error in applying principles of taxation for personal

property to the taxation of real property. I dissent from the Court’s decision to depart

from this well-reasoned precedent and our failure to recognize a distinction between

taxation of real property and that of personal property. I dissent also for the simple

reason that Gunnersfield received actual notice that he had failed to pay taxes owing on

his real property.

                                                   /S/ LAURIE McKINNON


2
   Expressio unis est exclusion alterius is a “canon of construction holding that to express or
include one thing implies the exclusion of the other, or of the alternative.” Black’s Law
Dictionary 602 (Bryan A. Garner ed., 7th ed. 1999).
                                            33
