Aragon v. Empire Gold Mining & Milling Co.

• Decision Date: 25 October 1943
• Docket Number: No. 4743.,4743.
• Citation: 142 P.2d 539,47 N.M. 299
• Court: New Mexico Supreme Court
• Parties: ARAGON et al.v.EMPIRE GOLD MINING & MILLING CO. et al.

47 N.M. 299

142 P.2d 539

ARAGON et al.

v.EMPIRE GOLD MINING & MILLING CO. et al.

No. 4743.

Supreme Court of New Mexico.

Oct. 25, 1943.

Error to District Court, Sierra County; Bryan G. Johnson, Judge.

Suit in equity by Empire Gold Mining & Milling Company and others against Crispin Aragon and Edward D. Tittmann, to prevent defendant Tittmann from redeeming a junior tax sale certificate, for cancellation of the tax sale certificate held by defendant Tittmann, and to enjoin the defendant Aragon, the treasurer of Sierra County, from issuing a tax deed upon the certificate held by defendant Tittmann. To review a judgment in favor of the plaintiffs, the defendants bring error.

Reversed and remanded with directions.

Where tax sale through which defendant claimed realty was had in December, 1936, and an action in equity to test validity of the sale commenced in October, 1941, such as the case at bar, a court of equity could properly consider laches as bearing on its decision in the light of the limitation statute. 1941 Comp. § 76-727.

Edward D. Tittmann, of Hillsboro, pro se, for plaintiffs in error.

BICKLEY, Justice.

This is a suit in equity wherein the plaintiffs (defendants in error) as successors in interest of the Empire Gold Mining & Milling Company, seek to prevent defendant (plaintiff in error) Edward D. Tittmann from redeeming a junior tax sale certificate; for the cancellation of the tax sale certificate held by said Tittmann, and that defendant Aragon, the Treasurer of Sierra County, be enjoined from issuing a tax deed upon the certificate held by Tittmann.

The case is here upon writ of error sued out by plaintiff in error Tittmann.

The defendants in error have filed no brief and the case was not argued orally.

From the record we divine that the case presents a public interest question in that our decision may afford a guide to the tax authorities in similar situations. We have therefore made considerable research without the aid of defendants in error.

The pertinent facts are as follows: The Empire Gold Mining & Milling Company, hereafter referred to as the Mining Company, was the owner of a 5 acre millsite in the N1/2 of the NW1/4 of Sec. 9, Twp. 16 S, R. 7 W, NMPM in Sierra County, N. M., which appeared upon the tax rolls of that county for the year 1935 under rendition by and in the name of that corporation as mineral lands at a valuation of $5 an acre.

Neither the Mining Company nor any one in its behalf paid the taxes so assessed against it for the year 1935.

However, one Cunningham, for the year 1935, among other real estate, rendered the N1/2 NW1/4, Sec. 9, Twp. 16 S, R. 7 W, NMPM in school district No. 2, Sierra County, N. M.

This tract was included in an assessment against several thousand acres as belonging to Cunningham and was assessed as grazing land at a valuation of $1.50 an acre.

Cunningham did not own and had no taxable interest in the 5 acres constituting the millsite which was owned by the Mining Company and was included in his rendition and payment by mistake.

The assessments against the two subjects of taxation were made each for a different classification of land although the 5 A. millsite was within the exterior boundaries of the tract rendered by Cunningham.

Cunningham paid the taxes so assessed against him for the year 1935.

The Treasurer sold at tax sale the millsite property assessed to the Mining Company for the year 1935, and on March 18, 1937, assigned the tax sale certificate No. 372 covering said sale to the defendant Tittmann.

The trial court made the following conclusions of law:

“1. That the assessment against M. H. Cunningham and the Empire Gold Mining & Milling Company each covering the N1/2 NW1/4 Sec. 9 Twp. S.R. 7 W. NMPM, constituted a double assessment upon the 5 A. described in the assessment of the Mining Co. for the year 1935.

“2. That the payment by Cunningham of the taxes upon the N1/2 NW1/4 Sec. 9 Twp. 16 S.R. 7 W. NMPM, first half on Nov. 30th, 1935, and second half on April 9th, 1936, was prior to the delinquent date of 1935 taxes.

“3. That the sale by the County Treasurer of the 5 A. under the assessment against the Empire Gold Mining & Milling Co. for 1935, was void and the tax sale certificate No. 372 issued on said sale was void.

“4. That payment by Cunningham of taxes upon the entire N1/2 NW1/4 Sec. 9 Twp. 16 S.R. 7 W. NMPM for the year 1935, was payment of the taxes upon the 5 A. millsite of the Empire Gold Mining & Milling Co. as being located in the N1/2 NW1/4 Sec. 9 Twp. 16 S.R. 7 W. NMPM, for the same year of 1935.” (Emphasis supplied.)

Whereupon the court decreed that the Treasurer cancel as void tax sale certificate No. 372 and permanently enjoined him from issuing a tax deed upon said certificate and that he show upon the tax rolls for 1935 “that the taxes upon said 5 A. millsite assessed in the name of the Empire Gold Mining & Milling Co. was paid by M. H. Cunningham for said year under his individual assessment.”

We think the trial court erred.

While many references are made in the record to “double assessment” we think little need be said about it. There was only one valid assessment and that was against the Empire Gold Mining & Milling Company and its 5 A. millsite. The assessment against Cunningham of the 5 acres upon which the millsite is located was a void, or at least a voidable, assessment. Cooley on Taxation, 4th Ed., Sec. 1096.

We are not unmindful of our holdings in Foster v. Bennett, 44 N.M. 618, 107 P.2d 321, but we have a different situation in the case at bar.

[1] No one is here claiming any rights under the assessment of the real estate to Cunningham. Hence the curative provisions of Sec. 76-723, Code 1941, have no application even if they would be applicable in case of an attempted sale under the Cunningham assessment, had Cunningham's taxes not been paid and the land listed by him gone to sale.

[2] Even under these curative provisions, in the case of sale of land assessed to unknown owners the land must have been “sufficiently described on the tax rolls.” Suppose Cunningham had not paid his taxes and the property assessed against him had gone to sale. Would a certificate of sale of the whole Cunningham tract, including the 5 A. tract belonging to some one else and not particularly described, carry as good a title to the falsely included portion as a tax sale certificate of a sale of a 5 A. tract rendered in the name of the true owner and specifically and definitely described?

[3] “Double taxation” is the imposition of the same tax, by the same taxing power, upon the same subject matter. See City of Philadelphia v. Heinel Motors, 142 Pa.Super. 493, 16 A.2d 761. We think this definition is applicable also to “double assessment.”

[4][5] Furthermore, the Mining Company would not have been in a position to complain of such overlapping of assessments for 1935 because it did not pay its taxes for that year. Cooley on Taxation, 4th Ed., Sec. 227 says: “The only person who is entitled to complain of a double assessment is the one who is made to bear more than his proportion of the burden of taxation. One complaining must show that he has paid one of the taxes before he asks to be relieved of the other.”

[6] It seems to be the general rule that one who by mistake pays taxes of another, cannot recover same from a person benefited by payment. See Annotations 61 A.L. R. 587, 592; 91 A.L.R. 389. The Supreme Court of the United States in Iowa Homestead Co. v. Des Moines Nav. & R. Co., 84 U.S. 153, 17 Wall. 153, 21 L.Ed. 622, decided that where taxes which should have been paid by the defendants were paid by a third party without the former's request or assent, that the taxpayers' refusal or neglect of such payment did not authorize contestants of his title to make him their debtor by voluntarily stepping in and paying such taxes.

So, if the Mining Company could claim the benefit of the payment by Cunningham of a part of its taxes due on the millsite for the purpose of defeating the tax sale certificate held by Tittmann it would be able to eat its cake and have it too, which would be inequitable.

We have found but few decisions of other courts which bear upon such a situation as exists in the case at bar. There is an annotation in 26 A.L.R. 622 on “Tax title as affected by fact that tax had been paid before sale” and sub-division E thereof treats of cases as affected by payment by other than owner in person. These cases arose usually where there were two assessments of the same land under the same claim of title for the same year, and the holdings usually are that under such circumstances one payment of the taxes under either assessment is all that the state can require.

The Supreme Court of West Virginia has so ruled, but on the other hand the same court in circumstances like those of the case at bar has taken a contrary position. In Bailey v. McClaugherty, 48 W.Va. 546, 37 S.E. 701, the court decided:

“1. P. sells and conveys a piece of land to B., who has himself charged therewith on the land books, and pays the taxes thereon for one year, but the next year fails to pay the same. The land still remains charged to P., and he pays the taxes thereon for the year in which B. fails to pay. The land is returned delinquent in the name of B., and sold, the purchaser in due time acquiring a deed therefor. Held, that the fact that the taxes were paid by P. will not render said delinquent sales, and the conveyance in pursuance thereof, void and ineffective.

“2. It is the duty of the owner of land to have it charged to himself on the land books, and to pay the taxes thereon. His failure to comply with this duty renders the land liable to be returned delinquent and sold.”

Brannon, J. (concurring) said:

“My reason for the decision in this case, given in short space, is that the law requires the assessment of the land in the name of its present owner, not in that of a former owner. If assessed in the name of the...