                                              No.    82-380

                     I N THE SUPREP4E COURT OF THE STATE O MONTANA
                                                          F

                                                     1983




JAMES E. E W R S AND GERALD A .
          D AD
STERNAD,

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



JAMES B. WALTERS AND ALICE E. FLAGER
a s County T r e a s u r e r o f ? l a d i s o n County,
Montana,

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




Appeal from:        District Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
                    I n a n d f o r t h e County o f I'ladison, The H o n o r a b l e
                    Frank B l a i r , Judge p r e s i d i n g .


C o u n s e l o f Record:


        For Appellants:

                    J e n k i n s Law F i r m ; K e l l y A.          Jenkins argued, Helena,
                    Montana


        For Respondents:

                    C h e s t e r Lloyd J o n e s a r g u e d , V i r g i n i a C i t y , Montana
         (Constitutional Question)
                Hon. PIike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Yontana




                                              Submitted:               A p r i l 1 9 , 1983

                                                  Decided:             June 1 4 , 1983




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

      Defendant (Walters) appeals from a summary judgment in
the Fifth Judicial District, Madison County; finding void a
tax deed to Walters in 1981; declaring plaintiffs (~dwards
and   Sternad)   entitled      to   redeem   and    have   title to    the
property sold to Walters; and barring Walters from asserting
any claim to the property.
      Edwards and Sternad are the alleged successors to J              &   J
Enterprises, the partnership taxed on Lot 52 of the Shining
Mountain Unit I11 Subdivision.           The taxes on the property
were delinquent.        The County Treasurer of Madison County
issued a certificate of tax sale on July 19, 1978.                    (This
certificate was eventually assigned to Walters on May 6,


      Walters    posted       the   property,      advertised   in     -
                                                                       The
Madisonian, the local newspaper and alleges that he sent a
certified letter to J     &    J at its last known address, all more
than 60 days prior to his application for tax deed.                    The
property description set out in the complaint is:
      "Lot No. 52 of the Shining Mountains (Unit I11 Sub-
      division, the plat of which is of record in the
      office of the Recorder of Madison County, Montana,
      in Book 4 of Plats, pages 58-63."
      The published notice provides:
      "Notice is hereby given that the undersigned will
      on the 19th day of July, apply to the county
      treasurer of Madison County for a tax deed to the
      following described property, to wit:
      "Clay Sub-lot 3, 35-4SlW
      "Amount, $115.20
      "S.M. Unit 3, Lot 52,
      "Amount due, $330.35
                 "   (s) James Walters
      "(Pub. May 7, 14, 1981)                      jw"
       The affidavit of proof of service of notice, required to
be submitted to the county treasurer, stated in part:
       "Notice of Application for Tax Deed                 on     the
       following described property, to-wit:
       "Shining Mountains Unit 3, 35, Twsp 45, Rg.lW was
       served on J & J Enterprises, record owner of said
       land, by placing a copy of said Notice in a
       certified letter addressed with the last known
       mailing address     .
                         . . on               which date
       was sixty (60) or more days prior to the date of
       application for the Tax Deed on said property;
       ...   11




       Walters did not file a return receipt with the county
treasurer to show that a certified letter had been received
by Edwards and Sternad.            In their complaint, Edwards and
Sternad    assert   that       Edwards   spoke   with   Walters   on     the
telephone and that in this conversation Edwards informed
Walters that he      intended to pay         the taxes owing.           They
further assert that Walters assured them that he would not
pursue the tax deed proceedings.          Edwards and Sternad did not
pay the taxes, they say, in reliance upon Walter's statement.
On August 25, 1981, Walters paid $227.95 for taxes then due
and received a tax deed to the property.                  Walters filed
notices and affidavits of his claim to tax title.
       On May 5, 1982, Edwards and Sternad tendered payment of
$305.77 for the overdue taxes.            On May 7, 1982, the County
Treasurer refused the payment.           The money was then deposited
with   the Clerk of Court.           On May      10, 1982, Edwards and
Sternad filed a complaint against Walters and the Madison
County Treasurer.     The Treasurer was later dropped from the
action.
       In their complaint Edwards and Sternad allege that the
time for redemption of the property had not expired because:
(1) the tax deed was wrongfully              issued and    inadequately
noticed, and     (2) Edwards and Sternad relied on Walter's
statement that he would not seek the tax deed.
      Edwards and Sternad moved for summary judgment alleging
errors in Walter's tax deed application procedure.                 They also
assert that the tax deed curative statute, section 15-18-203,
MCA, permits a taking notwithstanding the procedural defects
in Edward's application, and so is unconstitutional.
     Walters    failed    to   file       affidavits    or    a    brief    in
opposition to the motion for summary judgment.                The District
Court, after hearing arguments of counsel, granted the motion
on August 25, 1982.
ISSUES
      1.   Whether the District Court correctly granted summary
judgment in favor of Edwards and Sternad upon finding no
genuine issue of material fact.
      2.   Whether the errors and omissions in the tax deed
proceeding were    sufficient to deny           the County         Treasurer
jurisdiction to issue the tax deed.
      3.      Whether    the   curative       statute       providing      for
alternative    notice,    section     15-18-403,       MCA,    effectively
allows a deprivation of property without due process of law.
I.   SUMMARY JUDGMENT PROCEDURE.
     Walters argues the District Court improperly granted
summary judgment in this case because, he asserts, there are
material questions of fact present in this case.                  He asserts
that Edwards and Sternad are alleged in the complaint to be
the current owners and that J         &    J Enterprises was the only
record claimant of adverse interest to Walters for the period
involved; but neither Edwards, Sternad or J             &    J Enterprises
is alleged in the complaint as having been one entitled to
notice        by   mail   or   publication      pursuant   to        sections
15-18-202 (2), (3) MCA.
     Section 15-18-202(2), MCA, provides:
     "Notice of any owner, mortgagee or assignee of
     mortgagee shall be given by registered or certified
     letter addressed to such mortgagee or assignee at
     the post office address of said owner, mortgagee or
     assignee as disclosed by the mortgage record   .           .     ."
     J    &   J Enterprises was the record owner of the property.

In his Affidavit of Service of Notice of Application for tax
deed Walters claims he sent notice to J           &   J Enterprises, who
was required to receive notice pursuant to the statute.
     Furthermore,         Walters   published     notice    pursuant       to
section 15-18-202 (3) which provides for notice to unknown
owners.
     These statutes do not require that               persons       show they

are entitled to notice but require              notice be provided the
record owner; which was done in this case and not contested
by Edwards and Sternad.
     Furthermore, Walters did not file any documents in the
District Court to support his contention that there were
material questions of fact.
     Rule 56(e), M.R.Civ.P.         provides in part:
          .
     " . .When a motion for summary judgment is made and
     supported as provided in this rule, an adverse
     party may not rest upon the mere allegations or
     denials in his pleadings."
     Summary judgment is appropriate when the moving party

shows a complete absence of genuine issue of material fact;
and when the defendants fail to come forward with evidence
of genuine issue of material fact.           Willson v. Taylor (1981),

- Mont        . -, 634 P.2d    1180, 1184, 38 St.Rep. 1606.
     J    &    J Enterprises was the owner of record of the real
property prior to the issuance of the tax deed.                     This fact
was alleged in the complaint and admitted by Walters in his
answer.        Edwards and Sternad assert in their complaint that
they are the successors in interest to J           &    J Enterprises.
Walters denies this allegation for lack of knowledge but
Walters failed to come forward with his own affidavits in
dispute of Edward and Sternad's averments.
        For    these   reasons,    summary   judgment   was   properly
granted.
11.     ERRORS AND OMISSIONS IN THE TAX DEED PROCEEDINGS.
        Edwards and Sternad contend the errors in the published
notice are:       (1) an overstatement of the amount necessary to
redeem the property by over $100.00;            (2) failure of the
notice to give a complete date as to time for redemption (no
year); and       (3) an incomplete and vague description of the

property.
        They    further contend the errors in the Affidavit of
Service of Notice of Application for Tax Deed, required to be
filed pursuant to section 15-18-204, MCA, are:                (1)   an
insufficient date upon which the certified letter of notice
was mailed (no date appeared on the affidavit); (2) an overly
broad    description which        fails to adequately identify the
property;       (3) no support of proof of service of notice as
required by       section 15-18-202(1), MCA; and,        (4) fails to
demonstrate that the information required in a mailed notice
was in fact included in the notice as required under section
15-18-202 (1), MCA.
        They assert that the documents filed and notice provided
by Walters were so fatally defective as to deny the county
treasurer jurisdiction to issue the tax deed.
        Section 15-18-202, MCA, provides:
"Notice of application for tax deed.       (1) The
purchaser of property sold for delinquent taxes or
his assignee must, at least 6 0 days previous to the
expiration of the time for redemption or at least
6 0 days before he applies for a deed, serve upon
the owner of the property purchased, if known, and
upon the person occupying the property, if the said
property is occupied, and if the records in the
office of the county clerk and recorder show an
unreleased mortgage or mortgages upon the property
purchased upon the mortgagee or mortgagees named in
said mortgage or mortgages or if assigned, upon the
assignee or assignees of         said mortgage or
mortgages, a written notice stating that said
property or a portion thereof - -sold for
                                  has been -
delinquent taxes, giving the - -of sale, the
                                 date   -
amount of property - - amount for which it
                     sold, the
- - z the amount - and the - - -
was s o l               due,          time when the
right of redemption will expire or when the
purchaser will apply for a tax deed. The owner of
the property - - mortgagee or the assignee of
              or the
said mortgaqee has the right o f redemption
indefinitely, until such notice - been given and
                                  has -
- - applied for, upon the payment - -
the deed                                   of fees,
percentages, penalties, and costs required & -  law.
" (2) Notice - any owner, mortgagee, or assignee
              of
of mortgagee shall be given % registered -       or
certified letter addressed to such mortgagee or
assignee at the post office address of said owner,
mortgagee, or assignee as disclosed by the mortgage
records in the office of the county clerk and
recorder.    In case of unoccupied property or a
mining claim, such notice must be by registered or
certified mail deposited in the post office,
addressed to any known owner residing in or outside
of said county, with the postage thereon prepaid,
at least 6 0 days before the expiration of the time
for redemption or at least 6 0 days before the
purchaser applies for such tax deed, in addition to
notice to the mortgagee or assignee of mortgagee in
the manner and as hereby is provided.
"3. In all cases where the post office address of
the owner, mortgagee, or assignee is unknown, the
applicant shall publish once a week for 2
successive weeks in a newspaper published in the
county where the property is situated a notice
substantially in the following form:
          "Notice of Application for Tax Deed
"Notice is hereby qiven that the undersiqned will
on the        day- of         , 1 9 , appiy to the
county treasurer of               county for a tax
deed t o the following described property, to wit:
               " (Describe property)
" (Amount due   $     Date
                                    (Applicant)
     " (4) The first publication of such notice must be
     made at least 60 days before the date of redemption
     or application for said deed.
     "(5) In all cases due proof of service of notice
                             -
     in whatever manner given, supported            the
     affidavit   required  by   law, must    be   filed
     immediately with the clerk and recorder of the
     county in which the property is situated and be
     kept as a permanent file in his office, - -
                                               and such
     proof of notice when so filed shall be prima facie
     evidence - - sufficiency - - notice."
              of the            of the
Section 15-18-204, MCA, provides:
     "Affidavit of notice. - - -of the property sold
                            No deed -
     at - delinquent - - shall - issued by the
     -   a             tax sale       be
     county treasurer to the purchaser of the property
                                               -   .

     untilthe proof of service of notice of application
     - - - - - filerwith the-county
     for tax deed hasbeen                         clerk
     -
     and recorder as required -15q8-202.           Such
     purchaser is entitled to receive the sum of $3 for
     the service of said notice and the making of said
     affidavit required by 15-18-202, which sum of $3
     must be paid by the redemptioner at the same time
     and in the samemanner as other costs, percentages,
     penalties, and fees are paid."
     When Walters filed his affidavit of proof of service of
notice as required by section 15-18-204, MCA, he neglected to
state when   a certified letter containing the notice was
mailed.   It merely stated that it was mailed "on
which date was sixty (60) or more days prior to the date of
application for a Tax Deed on said property."   No supporting
documents showing due proof of service of notice were filed
with the affidavit.
     This Court has held that:
     "The requirements of the statutory law must be
     fully met in order to cut off the right of
     redemption and where, as here, the record shows a
     glaring omission to comply with those requirements,
     the right of redemption is not cut off.         The
     affidavit filed with the county treasurer must be
     explicit. The county treasurer has no authority to
     indulge in any presumption with regard thereto.
     Nothing can be read into it that does not plainly
     appear therein. The provisions of the statute are
     mandatory and absolute and any failure to comply
     with   statutory requirements relative to the
     affidavit of service will void the tax deed
     subsequently issued."   Lowrey v. Garfield County
     (1949), 122 Mont. 571, 583, 208 P.2d 478, 485.
       The statute requires that proof of service of notice of
application for tax deed be filed in accordance with section
15-18-202, MCA, which was not done in this case.
       From the record before us               it is apparent that the
treasurer of Madison County could not have known from the
document filed that notice was properly given or given at
all.
       The    affidavit   is     also   alleged to contain a              faulty
property description by omission of the lot number, therefore
rendering it insufficient.
       The affidavit sets out the description as:                        Shining
Mountains, Unit 3, 35, Twsp 4s1 Rg 1W.
       This    court   has     determined      that       when   the    property
description is too vague to adequately identify the land in
question; the description is fatally defective.                        Yetter v.
Gallatin County        (1982),          Mont   .          ,   645 P.2d 941, 39
St.Rep. 905, 907.
       Walters also published notice of application for tax
deed in The Madisonian on May 7 and 14, 1981.                           In this
notice, the taxes declared to be due were overstated by over
$100.00,      the   notice     failed    to        give   the    year    of   the
application for tax deed.          It also contained a vague property
description by designating Shining Mountain as S.M.                       Such a
description would not necessarily put one entitled to notice
on inquiry and is therefore vague.
       For validation of his notice procedures Walters relies
on section 15-18-205(2), MCA. It provides:
     "(2) - - - - deed -
           A tax - - - executed in the form as provided
     in -
     -  this section, when duly acknowledged and proved,
     - prima facie evidence that:
     is
       "(a)   the property was assessed as required by law;
       "(b)    the property was equalized as required by
       law;
     "(c)        the taxes were levied in accordance with law;
     "(dl        the taxes were not paid;
     " (e) notice       - - - - was given and published
                        of tax sale
     and property       sold at the proper - - place -
                        ---                time and  as
     prescribed         -law;
     "(f) the property was not redeemed, and the proper
     notice of application for deed has been served or
     posted as required by law;
     "(g)   the person who executed the deed was the
     proper officer;
     "(h) where the real estate was sold to pay taxes
     on personal property, the real estate belonged to
     the person laible to pay the tax."
     The errors in the notices and affidavit and Walters'
failure to file proof of mailing of a certified letter to J            &

J Enterprises establish that the necessary proof of notice to
establish a prima facie showing of proper notice was lacking.
Therefore,        the   presumption     does   not   become   effective.
Walters     is    thereby   precluded    from using    the    statute to
enforce the tax deed.
    The effect of these errors and omissions is to deny the
county treasurer jurisdiction to issue the tax deed.
    This Court has stated that:
    "'The law by its terms, gives to the notice the
    dignity of process of law, and to deprive him of
    his property, without giving this notice, is to
    deprive him of his property without due process of
    law. The giving of this notice is just as much a
    prerequisite to the issuance of a tax deed that
    will bar the right of redemption as the service of
    a summons is a prerequisite to the entry of a valid
    judgment.'.      ..
    "Notice        . . .
                     is analogous to process in the
    courts; and it is well known that a judgment, even
    so solemn a document as it is, is absolutely void
    unless the defendant has been served with process
     ...  provided by law. Otherwise he is deprived of
    his property without due process of law.     And a
    judgment is equally void, where it recites on its
    face that the defendant has been served with
    regular process, as any other void judgment, when
    the judgment roll or the proceedings disclose that
    the defendant has not been served with process. A
    judgment of this character is void, absolutely
     void, and can be stricken down at any time.   Lowrey
     122 Mont. at 581, 208 P.2d at 484.
     "The filing of an affidavit which meets with the
     statutory requirements is jurisdictional. Without
     such affidavit the treasurer is wholly lacking in
     power and authority to issue the deed..     ..  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 a 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 legislature may not do away with
     due process and notice and it is powerless to enact
     valid legislation exempting a tax deed from attack
     for failure to comply with the requirements of a
     jurisdictional nature constituting the necessary
     prerequisites to the validity of the tax deed." Id
     at 580, 208 P.2d at 484.
The defects in the affidavit of notice of service given to
the county treasurer and the defects of the published notice
are of such a nature as to preclude the county treasurer from
issuing the tax deed for lack of jurisdiction.
    Walters attempts to argue that actual notice on the part
of Edwards and Sternad precludes them from arguing lack of
proper notice.    When discussing the predecessor to section
15-18-202, MCA, this Court stated:
     "Some contention is made that actual knowledge of
     the proceedings by the plaintiff bars him from
     relief.   The record does not disclose that the
     plaintiff had the knowledge required to be given
     him by section 2209; and, furthermore, it is the
     notice given by the applicant, as required by the
     statute, which is controlling. Therefore there is
     no merit in this contention."      Kerr v. Small
     (1941), 112 Mont. 490, 494, 117 P.2d 271, 273.
    Walters is therefore precluded from asserting actual
knowledge of Edwards and Sternad as a defense to improper
notice procedures under the tax deed statutes.
     From the foregoing it is apparent that the tax deed
issued by the county treasurer is void.     Since the deed
itself is void we need not address the constitutionality of
section 15-18-403, MCA.
     The summary judgment of the District Court is affirmed
in all respects.

                                 QA-Q.%/Justice


We Concur:


 '    b      ,      4   .   ~   4
     Chief Justice




                            I
          ustices
