Baker v. Johnson.

• Decision Date: 20 December 1930
• Docket Number: No. 3450.,3450.
• Parties: BAKERv.JOHNSON.
• Court: New Mexico Supreme Court

35 N.M. 293

295 P. 421

BAKER

v.JOHNSON.

No. 3450.

Supreme Court of New Mexico.

Dec. 20, 1930.Rehearing Denied Feb. 9, 1931.

Syllabus by the Court.

Failure to file suit before July 1 for taxes for preceding year does not affect court's jurisdiction, statute being directory only (Laws 1921, c. 133, § 421).

Section 421, c. 133, Laws of 1921, providing that suit shall be filed on or before July 1st for taxes of preceding year, held directory, and failure to file suit until later does not affect jurisdiction of the court.

Assessor's failure to verify assessment roll did not affect validity of assessment after adjudication that tax was valid (Code 1915, § 5464).

Failure of assessor to verify assessment roll, as required by section 5464, Code of 1915, not available as ground of attack upon validity of assessment after judgment rendered establishing validity of tax.

Delinquent taxpayer who defaulted in general tax suit was precluded by judgment from questioning legality of summons, though duplicate roll corrected before judgment was filed without annotation showing delinquency (Laws 1921, c. 133, §§ 421, 430, 435).

Under section 421, c. 133, Laws of 1921, where duplicate roll is filed in general tax suit without annotations showing delinquency, and summons is issued, and correction is made before judgment, one whose land was delinquent and who neither answered nor appeared in the case to make any defense is cut off by the judgment from questioning the legality of the summons.

Judgment in general tax suit need not itemize taxes, interest, penalties, and costs against each delinquent's land nor describe lands (Laws 1921, c. 133, § 428).

Section 428, c. 133, Laws of 1921, does not require the judgment in general tax suit to itemize the amount of taxes, interest, penalties, and costs against each delinquent's land nor to describe the land.

List of property sold is not required in report of tax sale (Laws 1921, c. 133, § 440).

Report of tax sale under section 440, c. 133, Laws of 1921, not required to contain list of property sold.

Where land was assessable, taxes were delinquent, and judgment was rendered and sale ordered and no redemption made, tax title could not be attacked on ground sale was for excessive amount (Laws 1921, c. 133, § 435).

Under section 435, c. 133, Laws of 1921, tax title not open to attack on ground that sale was for excessive amount where land was assessable, taxes not paid, judgment rendered and sale ordered, and no redemption made within time allowed by law.

Treasurer's use of tax sale certificate in form following earlier law held not ground for attack on tax title (Code 1915, § 5502; Laws 1921, c. 133, § 441).

Use of certificate following section 5502, Code of 1915, for tax sale made under 1921 act, instead of form prescribed by section 441, c. 133, Laws of 1921, is not ground for attack on tax title.

Irregularity resulting from premature issuance of certificate on date of tax sale held cured by confirmation (Laws 1921, c. 133, § 441).

Issuance of certificate of sale on date of sale and before confirmation is irregularity cured by confirmation.

Tax sale takes effect and redemption period begins from date of sale, not from date of confirmation (Laws 1921, c. 133).

When confirmed, tax sale under chapter 133, Laws of 1921, takes effect as of date of sale and not as of date of confirmation, and redemption period begins to run from sale date.

Failure to give statutory notice before issuance of tax deed did not invalidate tax title, where land was delinquent and was sold pursuant to tax judgment and period for redemption had expired (Laws 1921, c. 133, §§ 449, 453).

One whose land was delinquent for 1920 and which was sold pursuant to tax judgment, and who did not redeem within period allowed by section 449, c. 133, Laws of 1921, has no defense against tax deed issued without notice required by section 453, c. 133, Laws of 1921, and failure to give the notice does not invalidate the tax title.

Appeal from District Court, Colfax County; Kiker, Judge.

Suit by William W. Baker against E. Vay Johnson, in which defendant filed a cross-complaint. Judgment for defendant, and plaintiff appeals.

Affirmed, and cause remanded.

One whose land was delinquent for 1920 and which was sold pursuant to tax judgment, and who did not redeem within period allowed by section 449, c. 133, Laws of 1921, has no defense against tax deed issued without notice required by section 453, c. 133, Laws of 1921, and failure to give the notice does not invalidate the tax title.

Crampton & Darden, of Raton, for appellant.

J. Leahy, of Raton, for appellee.

SIMMS, J.

Appellant owned a tract of land in Colfax county which was assessable for taxation in 1920, and paid the first half of the taxes levied thereon for that year. He did not pay the second half, however, and sale was made July 14, 1923, pursuant to a judgment and order in a general tax suit filed March 20th preceding. Appellee bought the land at the sale and received a certificate which she recorded July 17, 1923. On October 18, 1923, the court confirmed the sale. July 23, 1926, more than three years after the date of sale and less than three years after the order of confirmation, appellee applied for and obtained a tax deed without giving notice as required by section 453, c. 133, Laws of 1921. In 1928, appellant offered to redeem, but the county treasurer refused his offer. He thereupon brought suit to quiet his title and was met with an answer and cross-complaint by appellee claiming title under the tax deed. From a judgment in favor of the tax title claimant, plaintiff appealed.

[1] 1. Appellant's first point is that the jurisdiction of the district court in tax snuts is in a special proceeding, and that since section 421, c. 133, Laws of 1921, directs the suit to be filed on or before “the first of July of each year,” the suit could not have been filed for 1920 taxes later than July 1, 1921, and the filing of suit in March, 1923, was unauthorized and conferred no jurisdiction of the subject-matter. If this is the law, by simply omitting to sue by July 1st the officials have deprived the state of recourse to the courts to enforce collection of its delinquent revenue. Such a result ought not to be arrived at unless inescapable. It seems to be the generally accepted rule that a statute which prescribes the time in which public officers shall take certain action affecting the rights of the state and its citizens in matters of taxation is to be construed as directory merely, especially so where no prejudice is thereby visited upon the taxpayer. Cooley on Taxation (4th Ed.) §§ 510, 1061, 1318. We regard the requirement that suit be filed on or before July 1st of each year in the act under discussion as directory only and not in any manner as affecting the jurisdiction of the court to hear and adjudicate the matter if action is tardily filed.

[2] 2. It is urged that the assessor did not verify the roll for 1920 as required by section 5464, Code of 1915, in force when the assessment was made, and that consequently the use of a duplicate roll with the same infirmity as a basis for suit amounted to the absence of any complaint whatever and deprived the court of jurisdiction of the suit. This objection is not available after judgment, as we have just held in Williams v. Van Pelt, 295 P. 418.

[3] 3. Appellant claims that no lawful summons was ever issued in the tax suit for the reason that there was never in fact a complaint within the meaning of section 421, c. 133, Laws of 1921, on file at the time the summons was issued and published. It seems the assessor's duplicate copy of the 1920 roll was filed without any corrections or notations of delinquency. It contained the names of taxpayers, description of their property, and the tax extended in each case. The summons was published on the 20th and 27th days of March, 1923, for a return day of April 23d. After May 6th, the treasurer, by stamping the roll on the margin, showed what taxes had been paid, thus leaving blank those unpaid. On May 14th judgment in rem was entered by the court against all delinquents. So much of section 421 as is material here reads as follows: “*** Shall prepare and file, without cost, in the district court, the copy of the assessment roll of the last preceding year theretofore retained by said assessor, after the same shall have been corrected by marginal notes, or otherwise, showing the non-payment of taxes on real property therein, and when so filed so much thereof as shall show delinquent unpaid taxes on real property for said year shall have the effect of a complaint and the institution of a suit in rem against said real property. ***”

Appellant argues, in substance, that since only “so much thereof [the roll] as shall show delinquent unpaid taxes” constituted the complaint, and since there was no showing of any kind of delinquency as to his land when the complaint was filed and summons issued and published, there was no complaint as to his land on which a summons could issue. The argument is plausible but unsound. Appellant's land was in fact delinquent. As to it the complaint contained the name, description, amount of tax. If it was defective in failing to allege delinquency in the statutory manner, he could have appeared and halted the proceedings until proper corrections were made. But he did not appear and the...