(23 Mont. 337)

GRAGE ▼. PAULSON (UNITED SMELTING & REFINING CO., Garnishee).

(Supreme Court of Montana. Nov. 29, 1899.) APPEAL UNDERTAKING—AMBIGUITY.

A single undertaking to secure two appeals from two separate orders made at different times after judgment is void for ambiguity, justifying a dismissal of both appeals.

Appeal from district court, Lewis and Clarke county; S. H. McIntire, Judge.

Action by Henry Grage against Tony Paulson, defendant, and the United Smelting & Refining Company, garnishee. On motion to dismiss appeals. Sustained.

J. M. Clements and Chas. J. Geier, for appellant. Toole, Bach & Toole, for respondent.

PER CURIAM. It appears from the record herein that two appeals have been taken from two separate orders made after judgment, one entered on April 15, and one on June 10, 1899. It further appears that only one undertaking, in the sum of $300, is on file with the clerk of the district court to secure both appeals. A motion is made to dismiss the appeals on the ground that the undertaking is void for ambiguity. The motion must be sustained, upon the authority of Creek v. Waterworks Co., 22 Mont. 327, 56 Pac. 362; Murphy v. Railway Co., 22 Mont. 577, 57 Pac. 278; Copper Co. v. Hickey, 23 Mont., 58 Pac. 866. Let the appeals be dismissed. Dismissed.

(23 Mont. 338)

COBBAN v. HINDS, County Treasurer, et al. (Supreme Court of Montana. Nov. 27, 1899.) TAXATION-SALE FOR NONPAYMENT-INJUNCTION-BOARD OF EQUALIZATION.

1. Under Laws 1889, p. 219, § 4, which makes it the duty of a taxpayer to furnish the assessor a list of his property; and section 5, requiring the assessor to value each lot separately; and Laws 1887, p. 82, § 22, which provides that any person aggrieved by any assessment may apply to the board of equalization for the correction thereof,-equity will not enjoin the sale of separate lots assessed in gross, for the collection of the taxes thereon, where complainant does not show that he attempted to have the irregularity corrected by application to the board, or some excuse for not doing so.

59 P.-1

2. Under Pol. Code, 88 4023-4026, which pro hibit the restraining the sale of property for nonpayment of any tax, except where the tax is illegal or not authorized by law, or where the property is exempt from taxation. the listing of lands to the wrong person is no ground for restraining the tax sale; since, under Id. §§ 3700, 3916, 4014, it is but an irregularity or informality, which, of itself, does not render the tax "illegal or unauthorized."

3. Land should not be relieved of a lien for taxes because the owner did not know of the assessment, and had no opportunity to discharge the taxes, on account of the property being listed in the name of another.

4. The fact that the notice under which a tax sale was threatened was published but three weeks, whereas the statute requires four weeks, does not render the taxes "illegal or unauthorized by law," within Pol. Code, 88 4023-4026, so as to authorize the enjoining of the collection of such tax.

5. The fact that a county treasurer intends to violate Pol. Code, §§ 3922, 3923, by exposing for sale for the delinquent taxes for 1898 part of lands purchased by the county at the tax sales of 1897, and yet unredeemed, does not entitle the owner of the equity of redemption to an injunction; since section 4026 provides that the remedy before the board of equalization shall supersede the remedy of injunction and all other remedies which might be invoked to prevent a collection of taxes alleged to be irregularly levied or demanded, except in unusual cases, where the remedy thereby provided is inadequate.

Appeal from district court, Silver Bow county; John Lindsay, Judge.

Action by W. F. Cobban against Thomas R. Hinds, treasurer of Silver Bow county, and said county. From a judgment entered on sustaining a demurrer to the complaint, defendants appeal. Reversed.

The plaintiff is the owner of an undivided interest in certain real estate situate in the county of Silver Bow. The defendant treasurer being about to sell said real estate for the amount of the taxes due thereon and delinquent for the years 1890, 1892, 1893, 1894, 1895, 1896, and 1898, the plaintiff brought this action to enjoin him from selling, or offering for sale, the property, or any part thereof, for delinquent taxes for those years. The complaint charges, in substance, that the assessment of the property for 1890 is void because the tracts of land and city lots were not separately assessed or valued, but were assessed in gross, together with other lots

and parcels of land, of which neither the plaintiff nor his predecessor in interest was the owner; that for each year, beginning with 1890 and ending with 1898, the real estate was assessed to persons other than the true owners, and that neither the plaintiff nor his predecessor in interest had notice of or opportunity to contest the assessment, or notice to pay the taxes; that in 1892 the treasurer of the county sold all of the property to the county of Silver Bow in satisfaction of the taxes delinquent for the year 1891, and that in 1898 the defendant treasurer sold a portion of the property to the county of Silver Bow for the delinquent taxes of the year 1897, and that the property has never been redeemed from either sale; that at the time of the assessment of 1890 the statutes of Montana provided that notice of the sale by the treasurer for delinquent taxes should be published once a week for four weeks, the first of which publications should be at least four weeks before the day appointed for the sale, whereas the notice under which the treasurer now threatens to sell the property is but a three-weeks notice. A demurrer for insufficiency was overruled, and, the defendants refusing to plead further, a judgment was entered, in accordance with the prayer of the complaint, perpetually enjoining the defendant treasurer from selling, or attempting to sell, or from offering for sale, the property, or any part thereof, for the taxes delinquent for any of the years mentioned. The defendants appeal from the judgment.

C. B. Nolan, Atty. Gen., C. P. Connolly, and R. L. Clinton, for appellants. J. K. Mac donald, C. D. Tillinghast, Robt. McBride, and F. T. McBride, for respondent.

PIGOTT, J. (after stating the facts). 1. The contention of the plaintiff, to the effect that the assessment for 1890 was void because made upon several parcels of land in gross, and without separate valuation, has been considered in the late case of Deloughrey v. Hinds, 23 Mont. 58 Pac. 709, and held untenable. The facts pleaded in the case at bar are not to be distinguished, upon principle, from those presented in the Deloughrey Case, the doctrines whereof we affirm and again apply. The plaintiff, and those under whom he claims, were conclusively charged with knowledge of the time and place, appointed by law, when and where the board of equalization would meet; they knew that the lands owned by them would be assessed for the year 1890; and no excuse is offered for their omission to seek at the hands of the board a correction of the informality or irregularity of which they now complain.

2. The plaintiff insists that the assessments are void because the lands were listed by the assessor to persons other than the ownThe several statutes in force when the

ers.

respective assessments were made furnish a complete answer to the contention. In 1890, section 46 of "An act to provide for the levy of taxes and assessment of property," approved September 14, 1887, was in effect. It 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; but such land must in other respects be sufficiently described on the tax roll to identify it, and the taxes for which it is sold be due and unpaid at the time of such sale." In 1891 there was passed "An act concerning revenue," approved March 6th of that year. Section 13 of this act, after providing that the assessor must assess property to the person by whom it was owned or claimed, or in whose possession or control it was, proceeds to declare that "no mistake in the name of the owner, or supposed owner, of real property, renders the assessment thereof invalid." Section 148 of the act is as follows: "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,"-a paraphrase being: When land is sold, for taxes correctly imposed thereon, as the property of a particular person (or when land is sold, as the property of a particular person, for taxes correctly imposed upon the land), 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. And section 197 provides that "no assessment or act relating to assessment or collection of taxes is illegal on account of informality, nor because the same was not completed within the time required by law." These provisions of sections 13, 148, and 197 of the act of 1891 were incorporated into the Political Code of 1895, and appear as sections 3700, 3916, and 4014. Under these statutes, it 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. Support for these views is found in Landregan v. Peppin, 86 Cal. 122, 24 Pac. 859; Haight v. Mayor, etc., 99 N. Y. 280, 1 N. E. 883; Merrick v. Hutt, 15 Ark. 331; Trust Co. v. Weber, 96 Ill. 346; State v. Matthews, 40 N. J. Law, 268; Bradley v. Bouchard, 85 Mich. 18, 48 N. W. 208; Hill v. Graham, 72 Mich. 659, 40 N. W. 779; Stilz v. City of Indianapolis, 81 Ind. 582; Schrodt v. Deputy, 88 Ind. 90; Strauch v. Shoemaker, 1