HASWELL, Chief Justice.
Defendants, Thomas and Mary Ann Kenneally, appeal from a judgment in Silver Bow County District Court which quieted title to a tract of land in plaintiff, Joseph Russell Realty, Inc. Russell Realty cross-appeals, arguing it is entitled to damages for slander of title and attorney fees.
Both parties assert title to real property which is part of what is commonly called the Valley Addition in or near Butte, Montana.
From the abstract of title, it appears the property in dispute was owned by John and Mary Stewart in 1891. Russell Realty bases its title on a quitclaim deed executed in 1925 by the Stewarts. The deed conveyed to Russell Realty all the Stewart's
The land was considered worthless and was not taxed from 1915 to 1968.
Thomas Kenneally, who at all pertinent times acted on behalf of himself and his wife, became interested in the property in 1964. Discovering no taxes had been paid on the property, Kenneally contacted his attorney, William Geagan of Butte and discussed different manners of obtaining the land. After reviewing records in the offices of the county treasurer and the county assessor in hopes of finding out who the owner of the land was, it was determined the "property was in limbo." Geagan then advised Kenneally to secure
In 1970, Kenneally transferred the property to Mrs. Mary Margaret Baker, his mother-in-law. A quiet title action was filed in her name by attorney Geagan. In conjunction with that action, an abstract of title was prepared which named both Joseph Russell, the admitted stranger to title, and Joseph Russell Realty, the plaintiff in this action, as parties with potential interests in the land. Geagan testified this was the first time he became aware of Russell Realty's connection with the property. Russell Realty was named as a defendant in the 1970 quiet title action.
At this time, Russell Realty's corporate agent, within the state was attorney Bolinger of Bozeman, Montana. He was duly registered as such with the Secretary of State. Also on file with the Secretary of State was the name and address of Joseph Wirak, a director of Russell Realty and resident of Great Falls, Montana.
Kenneally, acting through attorney Geagan, had purchased a Bozeman gas station from Russell Realty in 1965. Attorney Bolinger, the corporate agent, handled the transaction for Russell Realty. In connection with that transaction, Geagan prepared an abstract of title in which he stated:
Kenneally and Geagan both testified that they did not connect the Russell Realty of this transaction with the Russell Realty which appeared as party defendant in the 1970 quiet title action.
Geagan testified he looked in the Butte city directory and telephone book, but was unable to find any listing for Joseph Russell Realty, Inc. He then contacted the Secretary of State whose office allegedly informed him that Russell Realty's principal office was in Butte, Montana and that there was no registered agent within the state.
Service of process on Russell Realty in the 1970 quiet title action was made under Rule 4D(2)(f), M.R.Civ.P. Basically, that rule allows service of process to be made on the Secretary of State if a defendant corporation cannot be located after a reasonably diligent search for certain officers and the registered agent has occurred. As required by the rule, the secretary mailed service of process to Butte, Montana, the asserted last known address of Russell Realty. It was returned undelivered.
The quiet title action proceeded without an appearance by Russell Realty and resulted in title being quieted in Mary Baker. The property was eventually transferred back to Kenneally.
In 1973, attorney Bolinger, acting on behalf of Russell Realty, investigated the property, the transaction from Joseph Russell to Kenneally and Mary Baker's quiet title action. The result was the filing of this action for damages or alternatively for return of the property, which Russell Realty contends rightfully belongs to it. The court found:
A judgment was entered accordingly and Kenneally was ordered to convey the land back to Russell Realty. Russell Realty was ordered to reimburse Kenneally for the taxes paid.
The following issues are presented on appeal:
1. Can Russell Realty maintain this action, which is essentially a collateral attack on the 1970 judgment quieting title in Kenneally's predecessor in interest?
2. Did Kenneally establish title by adverse possession under color of title?
3. Is Russell Realty entitled to punitive damages for slander of title?
4. Is Russell Realty entitled to attorney fees?
We are unable to agree with Kenneally that Russell Realty is barred from bringing this suit by the 1970 judgment quieting title in Kenneally's predecessor in interest. While it is a general rule that a judgment cannot be attacked in a collateral action such attack is permissible if the first judgment is void for lack of jurisdiction. Hoffman's Estate (1957), 132 Mont. 387, 318 P.2d 230. It is axiomatic that if service of process on a party is improperly made, the court acquires no jurisdiction over that party, Haggerty v. Sherburne Merc. Co. (1947), 120 Mont. 386, 186 P.2d 884, and it may collaterally attack the judgment. This is such a case.
Jurisdiction over Russell Realty in the 1970 action was predicated on service of process made under Rule 4D(2)(f), M.R. Civ.P. That rule provides:
We have recently construed the rule to require strict compliance. Shields v. Pirkle Refrigerated Freightlines (1979), Mont., 591 P.2d 1120, 1124, 36 St.Rep. 472, 477. The key language in the rule commands that reasonable diligence be used in locating the individuals listed in Rule 4(D)(2)(e), M.R.Civ.P. These persons include the corporation's registered agent and any director of the corporation.
The explanation offered by Kenneally excusing personal service is that the Secretary of State supplied his attorney with misinformation to the effect that Russell Realty had no registered agent in the state. The receipt of such information does not excuse or fulfill the due diligence requirement of Rule 4D(2)(f). Murdock v. Blake (1971), 26 Utah.2d 22, 484 P.2d 164, cited with approval by this Court in Shields v. Pirkle, Mont., 591 P.2d at 1124, 36 St.Rep. at 477-478, supra. There being no diligent search, service of process on the Secretary of State was inadequate to confer jurisdiction over Russell Realty. Russell Realty is not barred from collaterally attacking the judgment where the court has never acquired jurisdiction over it by valid service of process.
Kenneally's claim to the property arises out of adverse possession under color of title. As a defendant in a quiet title action, the burden of proving such assertion is on Kenneally. Bearmouth Placer Co. v. Passerell (1925), 73 Mont. 306, 309, 236 P. 673.
Adverse possession under color of title is possession based on a written instrument which purports to pass title but which in reality does not. The Court has stated:
Under Montana law, "An instrument which purports to convey land or the right to its possession is sufficient color of title as a basis for adverse possession if the claim is made in good faith." (Emphasis added.) Hentzy v. Mandan Loan & Inv. Co. (1955), 129 Mont. 324, 286 P.2d 325. See also Kuhn v. Chesapeake & O. Ry. Co. (4th Cir.1941), 118 F.2d 400, 405; Sullivan v. Neel et al. (1937), 105 Mont. 253, 257, 73 P.2d 206; Fitschen Bros. Com. Co. v. Noyes Estate (1926), 76 Mont. 175, 196, 246 P. 773; Burby Real Property 3d Ed., § 111, p. 272, 5 Thompson on Real Property § 2553, p. 671.
Here, Kenneally's "title" is based on a quitclaim deed from an individual who was known by all parties concerned to have no interest whatsoever in the property. There is no trace of good faith and there is no color of title. Jumping Rainbow Ranch v. Conklin (1975), 167 Mont. 367, 371, 538 P.2d 1027, 1029.
Kenneally goes to great lengths to demonstrate the weakness of Russell Realty's title. However, the party asserting adverse possession must succeed on the strength of his own title and cannot rely on the weakness of his adversary. Jumping Rainbow Ranch v. Conklin, supra; Diamond Investment Co. v. Geagan (1969), 154 Mont. 122, 124, 460 P.2d 760, 761. These arguments are of no avail.
We turn next to Russell Realty's assertion that it is entitled to punitive damages for slander of title. Under section 27-1-221, MCA, punitive damages are recoverable "where the defendant has been guilty of oppression, fraud, or malice, actual or presumed..." We have stated that malice is an essential element in an action for slander of title and that it will be presumed. Continental Supply Co. v. Price (1952), 126 Mont. 363, 376, 251 P.2d 553, 559. (Bottomly, J., specially concurring.)
We finally turn to Russell Realty's contention it is entitled to attorney fees. The general rule is that in the absence of statute or contract, attorney fees will not be awarded. Bitney v. School District No. 44 (1975), 167 Mont. 129, 535 P.2d 1273; Nikles v. Barnes (1969), 153 Mont. 113, 454 P.2d 608.
There being no statutory or contractual provision for attorney fees in this case, Russell Realty argues that if another's fraudulent act is the cause of litigation, attorney fees will be awarded. Assuming such an exception to the common law rule prohibiting attorney fees to exist, Home Ins. Co. v. Pinski Brothers (1972), 160 Mont. 219, 227-228, 500 P.2d 945, 950. See comment 40 Mont.L.Rev. 308, 318 (1979), it is not applicable here. Kenneally acted without good faith, but as explained above, we are unable to hold he acted fraudulently, maliciously or with bad faith toward Russell Realty. As such, attorney fees are not recoverable.
This Court has recognized the District Court's general equity power to make the injured party whole and in some isolated cases has upheld awards of attorney fees made in the exercise of this power. Holmstrom Land Co. v. Hunter (1979), Mont., 595 P.2d 360, 36 St.Rep. 926; Foy v. Anderson (1978), Mont., 580 P.2d 114, 35 St.Rep. 811. Such an award is within the sound discretion of the trial court, Foy v. Anderson, 580 P.2d at 116, 35 St.Rep. at 814, and in the absence of an abuse of that discretion, we will not disturb a decision denying attorney fees. See Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538, 541, for standard of review on matters where the trial court's discretion is involved. There is no abuse of discretion in this case.
DALY, SHEA and SHEEHY, JJ., concur.
HARRISON, Justice, dissenting:
This case is in my judgment on all fours factually with Jumping Rainbow Ranch v. Conklin (1975), 167 Mont. 367, 538 P.2d 1027. In that case the attorney gave his secretary ten dollars and a box of chocolates for a quitclaim; here Kenneally gave a man named Russell five gallons of gasoline for a quitclaim deed knowing that Russell had no interest whatsoever in the property. The majority here decide to accept the findings of the District Court in spite of the exact opposite holding in Jumping Rainbow. I believe the trial court's finding in the latter case, as we found, should be controlling in this case. I would reverse the findings of the District Court and return the case in light of our holding in Jumping Rainbow Ranch v. Conklin, supra.