March 25 2008
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 100
GARY L. COLLIER,
Plaintiff and Appellant,
ART KINCHELOE, as Personal Representative for
the Estate of Violet Jean Kincheloe a/k/a Violet
Kincheloe, Deceased, ART KINCHELOE, and
FIRST SECURITY BANK OF ROUNDUP,
Defendants, Appellees, and Cross-Appellants.
District Court of the Sixteenth Judicial District,
In and For the County of Rosebud, Cause No. DV 05-19
Honorable Joe L. Hegel, Presiding Judge
COUNSEL OF RECORD:
Bruce E. Lee, Attorney at Law, Billings, Montana
Michael Dockery, Jared LeFevre; Crowley, Haughey, Hanson, Toole
& Dietrich, Billings, Montana (for First Security Bank of Roundup)
Patrick J. Kelly, Attorney at Law, Miles City, Montana
(for Art Kincheloe)
Submitted on Briefs: September 6, 2007
Decided: March 25, 2008
Chief Justice Karla M. Gray delivered the Opinion of the Court.
Gary L. Collier filed this action to quiet title to real property located in Rosebud
The Sixteenth Judicial District Court, Rosebud County, entered
judgment granting fee simple title to the property to the Estate of Violet Jean Kincheloe
a/k/a Violet Kincheloe (Kincheloe). Collier appeals and First Security Bank of Roundup
cross-appeals. We affirm.
The dispositive issue is whether the District Court erred in determining Kincheloe
holds fee simple title to the disputed property.
This case involves title to the surface of real property in Rosebud County,
Montana, described as:
Township 12 North, Range 31 East, M.P.M.
Section 32: That part of the NE¼ lying east of the Musselshell River.
Section 33: E½ and that part of the NW¼ and N½SW¼ lying north and
east of the Musselshell River.
Pursuant to Elmer Collier’s Last Will and Testament, a life estate in the fee simple title to
the surface rights to this property was distributed to Elmer’s son Leo Collier in 1966.
The remainder interest in the property passed to Leo’s children. The mineral rights in the
real property are not at issue here.
Leo failed to pay property taxes for the year 1968 and, as a result, the property was
sold to Rosebud County for the payment of taxes in 1969. In January of 1972, the
County Treasurer of Rosebud County issued a tax deed to Rosebud County for the
On February 8, 1972, Rosebud County executed a quitclaim deed to the real
property to Leo and his wife. A creditor later obtained a judgment against Leo and his
wife and, during the execution of that judgment, the Rosebud County Sheriff sold the real
property at a sheriff’s sale. Wendell Kincheloe purchased “all the title, right, estate and
interest that [Leo and his wife] had on December 5, 1977.” Upon Wendell Kincheloe’s
death, title to the property transferred to Violet J. Kincheloe, who mortgaged the property
to First Security Bank of Roundup.
Leo died in August of 2003. His son Gary, one of the remaindermen under
Elmer’s will, filed this action in 2005, seeking to quiet title to the property in the
remaindermen. The other remaindermen ratified this action. The defendants—Violet
Kincheloe, Art Kincheloe, and First State Bank of Roundup—answered the complaint
and counterclaimed, seeking to quiet title in Violet Kincheloe’s name. After Violet
Kincheloe died, Art Kincheloe, as personal representative of her estate, was substituted
for her as a defendant.
The parties subsequently filed cross-motions for summary judgment under four
separate legal theories. The District Court issued a memorandum and order granting
summary judgment in favor of the defendants on grounds that Kincheloe had acquired
title to the property by adverse possession.
STANDARDS OF REVIEW
We review a district court’s grant of summary judgment de novo, applying the
standard from M. R. Civ. P. 56. The moving party must establish the absence of any
genuine issues of material fact and entitlement to judgment as a matter of law. We
review a district court’s conclusions of law to determine whether they are correct.
Baltrusch v. Baltrusch, 2006 MT 51, ¶ 11, 331 Mont. 281, ¶ 11, 130 P.3d 1267, ¶ 11
(citations omitted). We will affirm a correct result, even if the district court reached the
correct result for the wrong reason. Montana Earth Resources Ltd. Partnership v. North
Blaine Estates, Inc., 1998 MT 254, ¶ 29, 291 Mont. 216, ¶ 29, 967 P.2d 376, ¶ 29
Did the District Court err in determining that Kincheloe holds fee simple title
to the surface of the disputed property?
The District Court discussed the various legal theories raised by the parties in
relation to their motions for summary judgment. It reasoned in pertinent part that Leo
would benefit from his failure to pay the property taxes in 1968 if he and his wife
acquired fee simple title—rather than a mere life estate—when they purchased the
property from Rosebud County in 1972. Thus, the court determined that, in 1972, Leo
and his wife were restored to the life estate Leo held before he lost the property, and the
subsequent purchasers’ title was similarly limited to a life estate for Leo’s life. The
District Court also determined, however, that Kincheloe had obtained fee simple title to
the property by adverse possession.
With regard to the life estate issue, Collier contends the District Court correctly
determined that Leo and his wife only received Leo’s life estate in 1972. Relying on
“hundreds of cases”—including Word v. Moore, 66 Mont. 550, 214 P. 79 (1923)—he
advances the “flat out, well-established rule of law” that people who buy their own
property at a tax sale do not receive a new and paramount title, but merely are restored to
their former estate. As set forth above, however, Leo did not buy his own property at a
tax sale. Rosebud County bought the property at the 1969 tax sale. Rosebud County
subsequently acquired a tax deed which granted the county “all the property.”
Collection of property taxes, tax sales of property for unpaid property taxes,
redemption, tax deeds and sale of tax deed land are controlled by statute in Montana. The
statutes applicable to the tax deed proceedings at issue here are codified in Title 84,
Chapter 41, RCM (1947). Current Montana statutes on these subjects are codified in
Title 15, Chapters 16, 17 and 18, MCA.
It is undisputed that, as the owner of a life estate, Leo was responsible for paying
the taxes on the property. See e.g. In re Lindhart’s Estate, 133 Mont. 65, 72, 320 P.2d
357, 362 (1958). He failed to pay those property taxes and the property was sold to
Rosebud County at a tax sale in July of 1969. Leo did not redeem the property within the
period set forth in the Notice of Application for Tax Deed pursuant to § 84-4151, RCM
(1947). As a result, the Rosebud County Treasurer conveyed the property to Rosebud
County by tax deed in January of 1972.
Section 84-4170, RCM (1947), provides that a tax deed
shall convey to the grantee the absolute title to the lands described therein
as of the date of the expiration of the period for redemption, free of all
encumbrances and clear of any and all claims of said defendants to said
action except the lien for taxes . . . and the lien of any special, local
improvement, irrigation and drainage assessments . . . and except when the
land is owned by the United States or this state[.]
Pursuant to the statute, the tax deed granted to Rosebud County conveyed, by its terms,
all of the property at issue, without a life estate—or any other—restriction.
jurisprudence regarding tax deeds is of equally long standing.
In Rist v. Toole County, 117 Mont. 426, 159 P.2d 340 (1945), we relied on prior
Montana case law and § 84-4170, RCM, in stating
[a] tax deed is not derivative but “creates a new title in the nature of an
independent grant from the sovereignty, extinguishing all former titles and
liens not expressly exempted from its operation.” It therefore strikes down
not only the former owner’s fee title, but all encumbrances and incidents
thereof, including oil leases and assignments of royalty interests. Like
mortgages and other interests dependent on the fee, leases and royalty
interests must be accepted subject to that legal limitation and to the
circumstances that it may become necessary to see that the taxes upon the
fee are paid in order to preserve rights dependent thereon.
Rist, 117 Mont. at 442, 159 P.2d at 347 (citations omitted).
Under § 84-4170, RCM (1947), and Rist, Rosebud County’s tax deed created a
new title extinguishing all former titles and liens not expressly exempted from its
operation, including both Leo’s former life estate and the remainder interest. In turn, the
quitclaim deed from Rosebud County in 1972 conveyed its fee simple title to Leo and his
Necessarily, then, when Wendell Kincheloe purchased the real property, he
purchased fee simple title by acquiring “all the title, right, estate and interest” held by
Leo and his wife.
Collier argues, however, that because the statutorily-required period between a
county’s acquisition of property by tax deed and its sale of that land did not pass before
Rosebud County sold the property to Leo and his wife, acquisition of the property by
quitclaim deed in 1972 by Leo and his wife could not have occurred through a tax deed
auction. He surmises that the acquisition “must have been” a preferential repurchase by
Leo as the former owner, pursuant to § 84-4190, RCM (1947).
Nothing in the quitclaim deed indicates Leo and his wife’s 1972 purchase was
made pursuant to a repurchase right. Moreover, even if Collier were correct on this point,
the result of this case would not change. As we noted in Beckman Bros. v. Weir, 120
Mont. 305, 308, 184 P.2d 347, 348 (1947), “[t]he purchase of tax-acquired property from
the county by the former owner is not a ‘redemption’. . . and should not be confused with
a redemption.” The right of redemption is lost upon the fixing of a date for tax sale—
before the issuance of a tax deed. Beckman Bros, 120 Mont. at 309, 184 P.2d at 348. On
the other hand, a former owner’s statutory preferential right to repurchase under § 844190, RCM (1947), arises only after a tax deed has been issued to the county. Following
the issuance of the tax deed in this case, Rosebud County held fee simple title to the
property by virtue of the tax deed. As a result, the county’s quitclaim deed to Leo and his
wife conveyed that fee simple title to them.
We conclude Kincheloe holds fee simple title to the real property at issue.
Therefore, we hold that the District Court reached the correct result and correctly granted
summary judgment in favor of the defendants. Because our holding is dispositive, we
need not discuss the other issues raised.
We affirm the judgment of the District Court.
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE