State Ex Rel. Jensen Livestock Co. v. Hyslop

107 P.2d 1088, 111 Mont. 122, 1940 Mont. LEXIS 31

• Court: Montana Supreme Court
• Decided: October 25, 1940
• Docket: No. 8,151.
• Status: Published

Opinions

ME. CHIEF JUSTICE JOHNSON

delivered the opinion of the court.

Plaintiff appeals from a judgment entered against it on application for a writ of mandate to compel the defendants Custer county and the county treasurer thereof to permit relator Jensen Livestock Company to redeem land formerly owned by it but lost by tax deed.

Briefly the facts are that relator was the owner of certain lands in Custer county and permitted the taxes to go unpaid for 1930 and all subsequent years; in 1931 a tax sale was duly held for the 1930 taxes, the land was sold and a tax sale certificate was issued to the defendant county; on March 15, 1940, a tax deed was taken by Custer county, and on June 5, 1940, the land was sold to two purchasers; thereafter, on June 8, 1940, relator applied to the county treasurer to redeem the land from tax sale and tendered the amount of all taxes which had accrued against the land beginning with the year 1930, but without penalties and interest. Its offer being refused, this action was instituted against Custer county and its treasurer, and on the trial court’s motion the two purchasers were brought in as defendants.

No question is raised concerning the validity of the tax, tax deed, or land sale proceedings. There were no issues of fact and appellant’s argument is solely on questions of law under the specification that the court erred in rendering judgment for defendants and against plaintiff.

The contention is that notwithstanding the issuance of a tax deed, which discharges the tax lien and leaves nothing from which to redeem (Blackford v. Judith Basin County, 109 Mont. 578, 98 Pac. (2d) 872, 126 A. L. R. 639), and notwithstanding the county’s sale of the property to purchasers, the former owner can still under Chapter 11 of the 1939 Session Laws “redeem” his property from the tax sale. Several ques tions are raised on this appeal, among them the distinction between redeeming land from a tax sale and repurchasing it after issuance of a tax deed. (See Blackford v. Judith Basin County, supra.) But it will be necessary to consider only the one question, whether Chapter 11 of the 1939 Session Laws constitutes a Moratorium Act extending the time of redemption to February 1, 1941.

“Moratorium” is defined by Webster’s New International Dictionary (Second Edition, Merriam Webster) as: “A period of permissive or obligatory delay; specifically, {Law) a period during which an obligor has a legal right to delay meeting an obligation,” etc. 'The question is whether the Act delayed the taking of tax deeds or otherwise extended the time for redeeming lands from tax sale, or whether it merely gave relief from penalties and interest where redemptions made under the general laws were effected prior to the date named.

If Chapter 11 is not a Moratorium Act, the general statutes apply, making it the duty of the board of county commissioners, at its discretion, to cause the county clerk to apply for and obtain a tax deed (sec. 2209.1, Rev. Codes), at any time after application for such tax deed becomes permissible (sec. 2201) unless redemption is made in time. Since the tax sale was held in 1931 such application had long ago become permissible under the latter section unless further delayed by the chapter in question or some other remedial statute. It thus becomes necessary to examine the various remedial statutes.

The first appears to have been Chapter 88 of the 1935 Session Laws. The title and sections 1, 2, 3 and 6, the material parts of the Act, are as follows:

“An Act to Permit Real Property to be Redeemed From Tax Sale by Paying the Original Tax, Provided Such Original Taxes be Paid on or Before December First, 1935, and Relating to the Time of Taking Tax Deed.”

“Section 1. That from and after the passage and approval of this Act, any person having an interest in real estate heretofore sold for taxes to any county, or which has been struck off to such county when the property was offered for sale and no assignment of the certificate of such sale has been made by the County Commissioners of the county making such sale, shall be permitted to redeem the same by paying the original tax due thereon, and without the payment of any penalty or interest thereon. Such redemption of real estate must be made on or before the first day of December, 1935, and if such redemption is not made by the first day of December, 1935, then redemption can only be made by payment of the original tax with accrued interest penalties and costs as now provided by law. This Act shall not apply to the purchaser of any certificate of sale made prior to the passage and approval of this Act.

‘ ‘ Section 2. County Treasurers and City 'Treasurers in their respective counties and cities shall cause to be published in at least one issue of the official newspaper of such county or city a notice of such right of redemption and extension of time, such notice to be published within sixty (60) days from the approval of this Act. It shall be the duty of the County Treasurer of each county to mail notice to delinquent taxpayers to their last known address advising them of their rights under this chapter within sixty (60) days after the approval of this Act.

“Section 3. County and City Treasurers shall not make assignments of tax sales until after the first day of December, 1935. Providing further that any case where application for a tax deed has been made that this Act shall not apply.”

“Section 6. This Act stays the operation of all Acts and parts of Acts in conflict herewith until the first day of December, 1935, but does not otherwise affect such Acts or parts of Acts.”

It will be noted that the title expressed two purposes: The first, to permit redemption to be made by paying the tax without interest or penalties, if made by December 1, 1935; the second, to legislate concerning the time of taking tax deeds. Section 1 effected the first purpose. The second purpose was not effected in exact words, but section 2 made it the duty of the county treasurer to give public notice “of such right of redemption and extension of time,” section 3 expressly forbade the assignment of tax sale certificates by counties until after December 1, 1935, and section 6 expressly stayed the operation of Acts and parts of Acts in conflict with the chapter until the same date. Whether the last section stayed the application for and issuance of tax deeds need not be determined here, but obviously that must have been the intent.

The second remedial Act was Chapter 70 of the 1937 Session Laws, which was virtually identical with the first remedial Act except that the preamble was omitted, that the dead line for redemption without penalties and interest was extended to December 1, 1938, and that certain minor changes, not here material, were made.

The third remedial Act was Chapter 11 of the 1939 Session Laws, the one here in question. The only portions material here are the title and section 1, which are as follows:

“An Act to Permit Real Property to Be Redeemed From Tax-Sale by Paying the Original Tax, Provided Such Original Taxes Be Paid on or Before February 1, 1941. ’ ’

“Section 1. That from and after the passage and approval of this Act, any person having an equitable or legal interest in real estate heretofore sold for taxes to any county or which has been struck off to such county when the property was offered for sale and no assignment of the certificate of such sale has been made by the county commissioners of the county making such sale, or on which taxes are delinquent for the first installment of the year 1938, shall be permitted to redeem the same by paying the original tax due thereon, and without the payment of any penalty or interest thereon. Such redemption of real estate must be made on or before the first day of February, 1941, and if such redemption is not made by the first day of February, 1941, then redemption can only be made by payment of the original tax with accrued interest, penalties and costs as now provided by law. Provided, that nothing herein contained shall be construed so as to limit, restrict or prevent boards of county commissioners from ordering that applications be made for the issuance of tax deeds, or the issuance of tax -deeds to counties, or the assignment of certificates of tax sale by county or city treasurers during the period between the time this Act takes effect and February first, 1941, it being intended that during such periods, boards of county commissioners may order applications to be made for tax deeds and that tax deeds may be issued to counties, and that county treasurers may assign certificates of sale in the same way, in the same manner and to the same extent as though this Act had not been passed. This Act shall not apply to the holder of any certificate of sale other than a county.”

For all practical purposes, section 1 of Chapter 11, down to the proviso, is identical with the first section of the first two remedial Acts, except that it extends the dead line for redemption without penalties and interest to December 1, 1941. But some important changes were made in the new Act which are very significant as indicating the legislative intent. First: The title omits any reference to the second purpose expressed in the title of the first and second remedial statutes, namely, legislation “Relating to the Time of Taking Tax Deed.” In other words, the moratorium feature — legislation relating to the time of taking tax deeds, and therefore affecting the period of redemption — was eliminated from the title, leaving only the remedial provision that redemptions, if made by the date mentioned, might be made by paying the taxes only, without penalty or interest.

Second: Section 2 requiring the publication by county treasurers of “notice of such right of redemption and extension of time,” and section 3 forbidding county treasurers to make assignments of tax sale certificates until after the dead line, and section 6 staying the operation of all Acts and parts of Acts “in conflict herewith,” were omitted from the Act.

Third: The proviso in section 1 provides that nothing therein “shall be construed so as to limit, restrict or prevent boards of county commissioners from ordering that applications be made for the issuance of tax deeds, or the issuance of tax deeds to counties, or the assignment of certificates of tax sale by county or city treasurers during the period between the time this Act takes effect and February first, 1941, it being intended that during such period, boards of county commissioners may order applications to be made for tar deeds and that tax deeds may be issued to counties, and that county treasurers may assign certificates of sale in the same way,-in the same manner and to the same extent as though this Act had not been passed.5 ’

In other words, not only did the 1939 legislature omit from the title and body of Chapter 11 all reference to “Time of Taking Tax Deed” and to “extension of time” and to stays of the operation of Acts and parts of Acts in conflict therewith, but it affirmatively provided that there should be no moratorium in the application for or the issuance of tax deeds or the sale of tax sale certificates.

Thus whatever effect the 1935 and 1937 enactments may have had as moratorium statutes was both by omission and express provision entirely eliminated from the 1939 enactment. Assuming, without holding, that the first two remedial statutes were effective, both in remitting interest and penalty up to certain dates and in providing a moratorium by an extention of time in which to redeem, it is wholly impossible to interpret Chapter 11 of the 1939 Session Laws as providing such moratorium. All it can be considered to have accomplished, regardless of the effect of the earlier remedial Acts, was the further extension to February 1, 1941, of immunity from the payment of interest and penalties, providing the county still held the tax sale certificate when the Act became effective. But since it was expressly provided that the assignment of tax sale certificates and the application for and issuance of tax deeds were to be made “in the same manner and to the same extent as though this Act had not been passed” it is utterly impossible to read into the Act any legislative intention to provide for a moratorium for redemption from tax sale liens. What more could the legislature have done to evidence the fact that it was granting no further tax moratorium, but was merely offering an inducement to pay the delinquent taxes by February 1, 1941, by waiving interest and penalties until that date?

Redemptions made not later than February 1, 1941, may under Chapter 11 be effected by paying only the tax without interest or penalty if the certificates are then still held by the county. What the situation is with reference to interest and penalties in the case of tax sale certificates held by the county at the effective date of the Act, but thereafter assigned by it prior to the redemption, we cannot here decide. But since the application for and issuance of tax deeds under the general statutes is expressly permitted by the Act, without reference to the period during which interest and penalties are • waived, it seems clear that no moratorium is provided by the Act for the payment of the taxes themselves or for the redemption of property from tax’ lien. The Act not only failed to forbid, but expressly permitted, the taking of tax deeds during the period in question; and the right of redemption was in the present case definitely terminated by the issuance of the tax deed. (Blackford v. Judith Basin County, supra.) There is no more ground for holding that a tax deed issued prior to February 1, 1941, for the nonpayment of taxes alone, does not terminate the right of redemption, than there is for holding that one issued after that time for the nonpayment of tares with penalties and interest, does not terminate the right of redemption. The only relief provided by the Act from its effective date until February 1, 1941, is from the payment of interest and penalties, and not from the payment of the tax itself; and to take advantage of it the owner must pay the tax before the right of redemption has been terminated by the issuance of tax deed.

The judgment is therefore affirmed.

Associate Justices Morris, Angstman, Erickson and Arnold concur.