Montana Attorney General Opinion 15-229

Opinion No. 229 Sheliff's Sale-Real Pl'Opel"ty-Title -Ta .. "ation-County Assessors. HELD: Title to real property passes to thc purchaser upon sheriff's sale and hence such property should there- after be assessed in the name of the pnrchaser. June 2, 1933. You have submitted the question whether real property sold at sheriff's sale on August 20, 1932, should be as- sessed for the year 1933 in the name of the llUrchaser holding the sheriff's cer- tificate of sale, or whether it should be assessed in the name of the judg- ment debtor. HiO OPIXIOXS OF THE A'l'TORXEY GENERAL You hnn' suhmitted a copy of your opinion gh'en to ~'our count~' assessor in whkh YOU hold that the sheriff's sale did m;t pnss title to the purchaser hut merely gan' him a lien upon the property: that the title will stand in the nn me of the judgment dehtor. n nd that therefore the property should he nssessed in the name of said judgment debtor unless under the prodsions of Chapter 98, Lnws of 1931, it is exempt. I nm unable to agree with YOUI' opin- ion. Your premise that the title to the' real propert~' did not pass hy the sher- iff';; sa Ie. is not true and thereforp YOUI' C'onclusion is erroneous. Rection !l441 , R. ('. :\1. 1921. proyides: "Upon a ~nle of renl property, the pUl'cl1a~er is substituted to and acquires the right. title. interest, nnd claim of the judg- ment dehtor thereto" • '"." There ha,'e been a number of ded- sions of our S'upreme Court interpret- ing this section. In Citizens National Rnnk y. "Testern L, & B. Co .. 64 :1Ilont. 40, 20R Pac. R!l3. the late JustiC'e Hollo, way cited n numher of cases bearing on this question. and on page 46 said: "TIllder section 9441. Revispd Codes of l!l21. the purchnser at an execution or fOl'ecloSUl'e sa Ie is substituted to a))(l acquires the right, title and interest of the jlHlgment dehtor in the property sold (Hnmilton y, Hamilton, 51 Mont. 50!). 154 Pac. 717: Banking Corpol'l1tion ", Hein, 52 ~Iont. 238. 156 Pac. 1085: Power )ie'I'C'antile CO. Y. )loore )Ier, C'Hntile Co .. 55 ~lont. 401, 177 PHC. 4Ofl). lea "ing in the judgment dehtor only the ha re righ t to redeem ()lcQuepne~' Y. 'l'oomey. 36 Mont. 282. 122 Am. St. Rep. 358, 13 Ann. Cas. 316. !l2 Pac. 561). and the certificate of sale issued by the sheriff is n conyeyance within the meaning of the Recording Act (Duff Y. Ramlnl!. 116 Cal. 226, 58 Am. St. Rep. 158, 48 Pnc. 66). These principles are now settled beyond controversy." In Bnnking Corporation of ~iontalla v. Hein, 52 ~iont. 238, 156 Pac. 1085. the Supreme Court had occasion to dis- tinguish between the equity of redemp- tion and the statutory right of redemp- tion, and on page 241, the court said: "On the other hand, the right of re- demption arises only upon a sale, and ('xists for the period fixed by law. It is not property in any sense of the term, hut a bare personal prh'ilege." There have been a number of later decisions in this st·ate. See 'Villard et al. v. Campbell, 91 Mont. 493, page 500 of the ~fontana Report; Lepper v. Home Ranch Co., et al., 90 Mont. il58, 4 PaC'. (2d) 722. and the cases cited bv the e-ourt on page 565: Swanberg Y. SChac· fe'r. et a I., &'3 )lont, 16, 289 Pac. 561. and other Montana cases: see also 42 C. ,T. 352. Section 2080, and 61 C .. T. 212. Since the pure-haser at sheriff's sale acquired the title (lwing a defeasible title suhject to the right of redemp- tion). it follows that the real property purchased h~' him should be assessed in his name. It is therefore unneces' ~a ry to consider the question whether the property would he exempt from taxntion if title remained in the judg- ment debtor.