Alamogordo Improvement Co. v. Hennessee

• Decision Date: 26 March 1936
• Docket Number: No. 4106.,4106.
• Citation: 40 N.M. 162,56 P.2d 1127
• Parties: ALAMOGORDO IMPROVEMENT CO.v.HENNESSEE et al.
• Court: New Mexico Supreme Court

40 N.M. 162

56 P.2d 1127

ALAMOGORDO IMPROVEMENT CO.

v.HENNESSEE et al.

No. 4106.

Supreme Court of New Mexico.

March 26, 1936.

Appeal from District Court, Otero County; Frenger, Judge.

Action by the Alamogordo Improvement Company against J. M. Hennessee and others. From a judgment for defendants, plaintiff appeals.

Affirmed and remanded.

Purchasers of tax deeds acquired new title to land in fee simple absolute, paramount to previous titles and free from condition subsequent in original deed that use of premises for sale, manufacture, or disposition of intoxicating liquors in a public resort should cause reversion to original grantor. Laws 1921, c. 133, §§ 421, 435.

W. C. Whatley, of Las Cruces, for appellant.

J. L. Lawson, of Alamogordo, for appellees.

BRICE, Justice.

This is an appeal from a judgment in favor of the appellees in an action brought by the appellant to forfeit certain real property for the violation of a condition subsequent.

The essential facts, taken from the findings of the court and admissions in the pleadings, are as follows:

That prior to 1904 the Alamogordo Improvement Company owned all of the property in what is now the town of Alamogordo, N. Mex., and platted it into lots and blocks for the purpose of sale and improvement. As a part of its plan and scheme for the sale of the property, it was determined to prohibit the manufacture, sale, or other disposition of intoxicating liquors in said town, and to that end caused to be inserted in all of the deeds, which it made conveying any of said property, a condition whereby, as part of the consideration for the purchase price of lots, the purchaser and seller agreed, for themselves, their heirs, administrators, and assigns, that intoxicating liquors should never be manufactured, sold, or otherwise disposed of as a beverage or medicine in any place of public resort in or upon the premises granted, or any part thereof; the penalty being that “this deed shall become null and void and all right, title and interest in and to the premises hereby conveyed shall revert to the first party.”

The property in suit was sold by the Alamogordo Improvement Company and conveyed to the purchaser by a deed containing the provision with reference to intoxicating liquor stated. Taxes were thereafter assessed against it in the name of the record owners and never paid. Proceedings by the state to foreclose the tax liens were instituted against the record owners and against the real estate, and decree entered therein in favor of the state and against the defendants and the real estate for the amount of the taxes, interest, costs, etc., and foreclosing the state's tax lien. Thereafter the lands were sold at public auction to the county of Otero, and the tax certificates issued thereon were sold and assigned by the county to the State Bank of Alamogordo, to whom tax deeds were issued conveying to it said property, and through whom appellees claim title.

The Alamogordo Improvement Company was not made a party to the assessment or levy of the taxes or to the proceedings to foreclose the tax lien nor given notice thereof. After appellees acquired such tax title they immediately entered into possession of the property in suit and are now engaged in the sale of intoxicating liquors in a place of public resort on said premises.

The sole question is whether the right of forfeiture and reversion contained in the deed survived the sale of the property under the proceedings foreclosing the tax liens. The regularity of the tax foreclosure proceedings is not an issue, so that the answer to the question depends on the nature of the title that passed by the tax deed issued to appellees' predecessor in title.

Chapter 133, N.M.Sess.Laws 1921, by virtue of which taxes were levied, assessed, and the property sold, provides, in substance, that all property not exempt shall be subject to taxation; that the owner shall list his property for taxation under certain penalties; that taxes are a lien on the property taxed; that a suit to foreclose a tax lien is “a suit in rem against said real property, *** and in personam against all persons” appearing on the tax roll as owner of property on which taxes are delinquent, and “who shall be personally served with process” (Section 421); judgment in rem is taken against all property as to which no answer is filed, whether or not personal judgment is taken; “sale of such property *** shall not be void or set aside on account of any error or irregularity in listing” the property upon the tax roll, “either as to the name or names of the owner or owners thereof, by reason of its being listed in the name of the wrong person” (Section 435). A tax sale certificate, when recorded, vests in the purchaser, his heirs or assigns, or the county and its successors, a complete legal title to the property described therein, subject to redemption as provided by law. The deed shall vest in the grantee, his heirs, successors, and assigns, a perfect and complete title in fee simple to the said premises, free and clear of all liens and incumbrances except taxes levied thereon prior or subsequent to the year for which the same were sold.

In New Mexico, taxes are a charge against the land as well as a personal obligation of the owner, and the procedure to enforce a tax lien is in rem against the property taxed, though a personal judgment may also be taken when the owner is served with process. As a matter of practice, as is well known, such proceedings are seldom in...