Montana Attorney General Opinion 17-40

Opinion No. 40. Tax Deed, Application for-Redemp- tion Tax Sale, Right of. HELD: Where taxes are delin- quent for more than four years, pur- chaser of tax sale certificate may OPINIONS OF THE ATTORNEY GENERAL 43 apply for such tax deed as soon as more than four years taxes are delinquent. Counties and individuals have same rights regarding application for tax deed, except Section 2201, as amended by Chapter 125, Laws of 1933, by ex- press terms does not restrict rights of individuals acquired prior to the amendment. Mr. Gordon O. Berg County Attorney Ekalaka, Montana Dear Mr. Berg: February IS, 1937. You have asked my opInIOn as to when tax deed may be taken on the following facts; "In this county a tax sale was held, and a certificate issued to the county on July 24, 1933, as provided by law. On February 5, 1936, said certificate was assigned to the present holder as provided by law. Thereafter, an ac- tion was commenced against the county treasurer et al for a tax deed, in the District Court. When the mat- ter was called to my attention, fol- lowing my taking office, the time for answer or demurrer had elapsed. I however, informed the court that I did not think the county treasurer could legally issue a tax deed until after July 24. 1937, in the light of Section 2201, R. C. M., 1935. A decree has been signed, but no application will be made for a tax deed until this statute is interpreted relative to the instant case. The holder of the certi- ficate has paid all taxes for 1932, '33, '34, '35, and the first half of 1936; in other words, all taxes which were delinquent. "It is my opinion that no differ- ences exist in regard to this point because a county and an individual. as a certificate holder, and if a coun- ty would not be entitled to a tax deed, neither would an individual." In this connection you call atten- tion to an opinion of the Attorney General, in Volume IS, Opinions of the Attorney General, p. 235, dated September 26, 1933. According to Section 2201, R. C. M., 1935. tax deed may not be issued in less than five years from date of pur- chase (of lands sold for delinquent taxes) "in all cases where not more than four years taxes shall be delin- quent." From the facts stated. it ap- pears that more than four years taxes are delinquent and were delinquent when application for tax deed was made; therefore, the restriction above quoted would not apply. As soon as the 1936 (the fifth year) became de- linquent. this restriction became in- applicable, and the purchaser could immediately apply for tax deed. He was therefore within his statutory rights when he applied for tax deed on or after March 5, 1936. See also our opinion No. 30, dated February 2, 1937, to County Attorney Allen, Volume 17, Opinions of the Attorney General. The opinion of the Attorney Gen- eral, No. 344, in Volume IS, Opinions of the Attorney General, p. 233, should be modified. We agree with you that no differ- ence exists between a county and an individual. The effect of the last sentence in said Section 2201, as amended, was to make Chapter 125, Laws of 1933, inapplicable to parties other than counties holding tax sale certificates prior to the passage and approval of the Act, since their prop- erty rights had been acquired and were based on the law before it was amended.