BALTZLEY v. LUJAN

• Decision Date: 08 December 1949
• Docket Number: No. 5179,5179
• Citation: 53 N.M. 502,212 P.2d 417
• Parties: BALTZLEY v. LUJAN et al. BALTZLEY v. VIGIL.
• Court: New Mexico Supreme Court

53 N.M. 502

212 P.2d 417

BALTZLEY

v.LUJAN et al.

BALTZLEY

v.VIGIL.

No. 5179.

Supreme Court of New Mexico.

Dec. 8, 1949.

[212 P.2d 417, 53 N.M. 503]

Fletcher A. Catron, Santa Fe, for appellant.

M. W. Hamilton, Santa Fe, for appellees.

LUJAN, Justice.

This is an appeal by the plaintiff (appellant), from a judgment rendered against her by the District Court of San MiguelCounty in two distinct causes which were consolidated for trial because they involved the same property. The parties occupy the same position in this court as in the trial court, and for convenience will be referred to as the plaintiff and the defendant.

The first case, No. 12881, was instituted by the plaintiff on October 21, 1941, against Marcos Lujan, the original patentee and Ramon Vigil, the present defendant. This was a suit to quiet title. However, before this case was filed, Marcos Lujan, on June 9, 1941, had conveyed his interest in saidproperty to Ramon Vigil, and the taxes for the years 1931 to 1940, inclusive, except for the year 1939 had been paid by Marcos Lujan. Thereafter, on June 22, 1943, Lujan died. The second suit No. 13566, in ejectment, was filed on May 11, 1945, against the defendant Ramon Vigil.

The material facts are substantially as follows:

On October 12, 1900, the United States Government issued a patent to Marcos Lujan for the following property: The North half of the Southwest quarter and the South half of the Northwest quarter of Section four in Township sixteen North of Range thirteen East of the New Mexico Meridian. For the years 1931 to 1938 inclusive, the assessor of San Miguel County assessed the following property in the name of Marcos Lujan: N 1/2 SW 1/4, S 1/2 NW 1/4, Section 4, Township 16, Range 18 School District No. 97, East Pecos.

This property, as above assessed, was sold for non-payment of taxes for the years 1931, 1932 and 1934, and Tax Sale Certificates Nos. 5913, 5928 and 7709 were issued accordingly by the county treasurer. Each of these certificates contained the same description as that appearing on the tax rolls. On March 31, 1938, while the property was still assessed as in Range 18 the county treasurer executed and delivered to the State his Tax Deed No. 1774, describing the property as lying in Rnage 13 East, thereby disregarding the fact that the tax rolls as well as the tax sale certificates described the land as being in Rnage 18 East. Although no legal action had been taken to change the tax rolls and the tax sale certificates to conform with the tax deed, the State Tax Commission on August 8, 1939, executed and delivered to the plaintiff its deed for this property describing it as lying in Range 13 East, notwithstanding it still stood on the tax rolls as being in Range 18 East. This is the first deed upon which the plaintiff bases her title to the property. On December 10, 1937, the property was again sold for the delinquent taxes of 1936. The property was still assessed and appeared on the tax rolls as in Rnage 18, for that year, although some time thereafter an attempted correction was made by writing the figure '3' over the figure '8' with an indelible or blue pencil, thereby making the Range read ' 13E' instead of Range ' 18E' as it originally appeared on the tax rolls for the years 1931 to 1936, inclusive. Pursuant to the sale of the property as it appeared on the tax rolls, Tax Sale Certificate No. 1240 was issued by the county treasurer describing it as lying in Range 13E. The record does not disclose whether this attempted correction was made before or after the issuance of the tax sale certificate, nor by whom it was made; nor that a new sale of the property was made, after the correction in the description. On February20, 1945, the county treasurer issued Tax Deed No. 2295 to the State, therein describing the property as being in Range 13E. On March 17, 1945, the State Tax Commission executed and delivered to the plaintiff its deed therein referring to the property as lying in Range 13E. This is the second deed upon which plaintiff claims title. During the year 1941, the defendant appeared before the county treasurer for the purpose of paying his taxes and upon examination of the tax rolls it was discovered that his land was not assessed, thereupon the treasurer placed it on the tax rolls for the years 1931 to 1938 inclusive and 1940, with the notation 'Treasurer's Assessment of Omitted Property.' The defendant them paid the taxes due for the years 1931 to 1938 inclusive and was issued Tax Receipt No. D1143 dated May 29, 1941. On July 17, 1943, the defendant paid the taxes for the year 1941 and was issued Tax Receipt No. D1522.

The plaintiff's first proposition here, as to her first deed, is that the description of the property in question as it appears on the tax rolls for the years 1931 to 1935, inclusive, and particularly for the years 1931, 1932 and 1935, aided by extrinsic evidence was sufficient to identify the land as that belonging to Marcos Lujan, and cites several New Mexico cases in support thereof, but we do not believe they are in point in this case. In those cases we held that the description, though on its face uncertain, may be aided by extrinsic evidence, which, by means of data furnished by the description itself, will resolve the uncertainty, but we have a different situation here.

The facts as disclosed in the record show that the description on the tax rolls and in the tax sale certificates refer to an entirely different tract of land from that contained in the tax deed. The county treasurer sold the property as it stood on the tax rolls for the non-payment of delinquent taxes and upon such sale issued tax sale certificates bearing that description, but for some unexplained reason he issued a tax deed to the State describing the land as lying in a different range, contrary to Section 76-717, 1941 Compilation, which provides, in part, as follows:

'* * * County treasurers shall issue a deed to the state of New Mexico, in the form as in this act provided, and shall execute separate deeds for the property described in each tax sale certificate sold to the state and not assigned * * *.' (Emphasis ours.)

Since the mandatory provisions of the statute were not complied with, the county treasurer was without authority to execute and deliver a deed which did not describe the same land as that assessed and sold at the delinquent tax sale. Consequently the tax deed being void the State acquired no rights thereunder, and theplaintiff could claim no better title than the State had. The recitals in the tax deed were false, because they did not describe the land sold as that appearing on the tax rolls and upon which the tax sale certificates were based. Heron v. Ramsey, 45 N.M. 483, 117 P.2d 242; Lawson v. Hedges, 37 N.M. 499, 24 P.2d 742; Jones v. Dils, 18 W.Va. 759; Blair Town Lot & Land Co. v. Scott, 44 Iowa 143; Black on Tax Titles, Sections 112, 405; Gilbert v. Conservative Loan & Trust Co., 138 Okl. 1, 280 P. 278, 67 A.L.R. 885; Patrick v. Davis, 15 Ark. 363; Terwilleger v. Bridges, 192 Okl. 642, 138 P.2d 79 Sears v. Murdock, 59 Or. 211, 117 P. 305.

The assessment of property for taxation is one of the essential steps leading up to a sale for taxes. If an assessment is void it follows inevitably that the sale based upon such assessment is likewise void. The description appearing on the tax rolls as well as on the tax sale certificates could not be supplemented or cured by the description contained in the tax deed, for that would be to base the deed not upon the sale and anterior proceedings, as the law requires for its validity, but upon evidence aliunde, which, whether correct or not, could not authorize the officer of the law executing the deed in the exercise of a naked power to make a valid execution of it so as to pass title. Bull v. Martinez, 43 N.M. 113, 86 P.2d 599; Manby v. Voorhees, 27 N.M. 511, 203 P. 543; Blackwell on Tax Titles, Sections 874 and 875; Boon v. Simmons, 88 Va. 259, 13 S.E. 439; Cotton v. White, 131 Ark. 273, 199 S.W. 116. The same rule must necessarily obtain with respect to a tax deed passing title from the State to a third party.

The plaintiff next urges as to her second deed, that, (1) the burden rested on the defendant to establish by substantial evidence that the correction made in the description on the 1936 tax roll was made illegally and constituted a fraud against Marcos Lujan or the defendant; (2) that there is no evidence in the record establishing such illegality or fraud, and in the absence of proof it must be assumed that the correction was made regularly and legally; and (3) that even if it should be assumed that there was any irregularity in the making of the correction, it was not a defense available under the provisions of Section 76-726, 1941 Compilation.

This being a suit to quiet title, it was incumbent upon the plaintiff to establish his title before he could succeed. Therecould be no burden imposed on the defendant until the plaintiff had established a title that could be quieted. Union Land & Grazing Co. v. Arce, 21 N.M. 115, 152 P. 1143; Abeyta v. Tafoya, 26 N.M. 346, 192 P. 481; Wall v. Magnes, 17 Colo. 476, 30 P. 56; McCauley v. Ohenstein, 44 Neb. 89, 62 N.W. 232. The plaintiff introduced this second deed and rested. The defendantobjected to it on the ground that it was not the same property as that appearing on the tax roll and which was sold for delinquent taxes. Section 76-720 of 1941 Compilation provides that a tax deed shall be prima facie evidence of certain facts, among which are: 'That the property had been listed and assessed at the time and in the manner required by law; that the property was sold for taxes as stated in the deed; that the sale was conducted in the manner required by law.'

The evidence was sufficient, however, to overcome the prima facie case established by the deed.

The deed in question was based upon a tax sale certificate issued pursuant to a sale of property described in the tax roll as...