Bowers v. Brazell.
| Decision Date | 21 February 1922 |
| Docket Number | No. 2554.,2554. |
| Citation | 27 N.M. 685,205 P. 715 |
| Parties | BOWERSv.BRAZELL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where the main object in a suit or action is for the purpose of setting aside a judgment or decree, such an attack is a direct, and not a collateral, attack.
A default decree in a suit to quiet title, in which the plaintiff's right and title were based upon a tax deed, invalid because the taxes for which it was issued had been paid, cannot, in the absence of fraud, be set aside by a subsequent suit for that purpose. The doctrine of res adjudicata applies.
Appeal from District Court, Union County; Leib, Judge.
Suit by Vada Bowers against James Brazell to quiet title. Judgment for plaintiff and the defendant appeals. Reversed, with instructions to sustain the demurrer to the complaint.
A default decree in a suit to quiet title in which plaintiff's right and title are based upon a tax deed, invalid because the taxes for which it was issued had been paid, cannot, in the absence of fraud, be set aside by a subsequent suit for that purpose, in view of Code 1915, §§ 4227, 4230.
O. P. Easterwood, of Clayton, for appellant.
D. A. Paddock, of Clayton, for appellee.
This is an appeal from a judgment setting aside a former decree in appellant's favor in a suit to quiet title. Upon overruling of appellant's demurrer to the complaint and his refusal to plead further, judgment was entered for the appellee, granting the prayer of the complaint and setting aside the former decree.
On the 4th of March, 1913, the county treasurer of Union county attempted to sell certain land for taxes alleged to be due thereon for the year 1909, issued a certificate to one Bernard O. Gow, and thereafter issued to him a tax deed for the land covered by the tax certificate. On November 19, 1916, Gow conveyed the land to James Brazell, the appellant. On January 2, 1919, Brazell brought an action against the plaintiff to quiet title to the land in question, this case being No. 4157. Service upon the defendant was made by publication of the decree obtained March 3, 1919. On June 21, 1920, the present suit, No. 4754, was begun by the appellee, alleging, among other things, that the taxes on the land in question had been fully paid by her predecessor in title, and asking that the purported tax sale certificate and deed given to Gow by the treasurer be canceled and held for naught; that the former decree be declared void and of no effect. To this complaint the defendant below, appellant here, demurred, on the ground that all the issues of the present suit had been determined by the prior suit; that the plaintiff was barred and estopped; that the proceeding was a collateral proceeding attempting to set aside a decree rendered in cause No. 4157, in which all the issues had been fully adjudicated, and that it was not a proper proceeding to set aside and attack the decree rendered in said cause No. 4157 on the 7th of March, 1919, more than 12 months preceding the filing of the complaint in this action. This demurrer was overruled by the court, and, appellant electing to stand upon the demurrer, judgment was entered for the appellee, and this appeal taken.
[1] Appellant assigns as error the action of the court in overruling the demurrer and rendering judgment in favor of the appellee for the reasons set out in his demurrer to the complaint. He contends, first, that this suit is a collateral attack upon a judgment heretofore rendered by the district court, and as such cannot be maintained. In our opinion there is no merit in this contention. The attack as made in this case is a direct attack upon the judgment.
“A direct attack on a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of the same in a proceeding instituted for that purpose.” 15 R. C. L., par. 312, “Judgments.”
See, also, Black on Judgments, vol. 1, par. 252.
[2] It is conceded by appellee that he did not proceed under Code 1915, §§ 4227, 4230, which pertain to setting aside default and irregular judgments upon motion.
Appellee contends that there was fraud in the procurement of the judgment, and it is admitted by the appellant that if there was fraud in the procurement of such judgment it could be set aside, but he contends that there is no fraud alleged nor proved. Appellee alleges that the tax deed delivered to Gow was wrongfully and illegally issued; that the pretended deed was null and void and wrongfully and illegally issued. These allegations do not amount to allegations of fraud. If the taxes had been paid, the tax deed undoubtedly was wrongfully and...
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...now call a "collateral attack"—namely, an independent action to challenge the validity of a prior judgment. See 1922–NMSC–014, ¶ 3, 27 N.M. 685, 205 P. 715. But this Court later noticed that the development of the law specifically rendered the imprecise Bowers formulation anomalous. See Apo......
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