Cavender v. Phillips

• Decision Date: 06 April 1937
• Docket Number: No. 4140.,4140.
• Citation: 41 N.M. 235,67 P.2d 250
• Parties: CAVENDERv.PHILLIPS et al.
• Court: New Mexico Supreme Court

41 N.M. 235

67 P.2d 250

CAVENDER

v.PHILLIPS et al.

No. 4140.

Supreme Court of New Mexico.

April 6, 1937.

Appeal from District Court, Curry County; James B. McGhee, Judge.

Action to quiet title by T. B. Cavender against J. W. Phillips and others. From a judgment in favor of the plaintiff, the defendants appeal.

Affirmed.

In action to quiet title by grantee of tax deed, presumption that grantee was heir at law or assignee of the purchaser held not fully negatived by allegations of answer that county sold tax sale certificate to attorney who delivered it to county treasurer, who in turn issued tax deed in exchange therefor to grantee, and that attorney attempted to assign certificate to grantee by indorsement in blank. Laws 1921, c. 133, § 455.

Otto Smith, of Clovis, for appellants.

Hatch, Grantham & Houk, and Mayes & Rowley, all of Clovis, for appellee.

BICKLEY, Justice.

From a decree for the appellee (plaintiff below) against appellants (defendants below) quieting title to certain real estate, this appeal has been prosecuted. Only one proposition requires discussion.

The complaint contains a statutory action to quiet title. An answer was filed by one of the defendants (appellant), containing denials and certain affirmative allegations assailing the validity of a tax deed relied upon by plaintiff as the source of his title. A demurrer was filed to the affirmative portions of the answer upon the ground principally that the allegations thereof fail to state facts sufficient to constitute a defense to the cause of action set forth in plaintiff's complaint. This demurrer was sustained and appellant declined to amend; whereupon judgment was entered for appellee.

We assume that when the court ruled upon the demurrer there was presented to him the same picture that is presented to us in the pleadings and briefs of counsel for appellant. So viewing it, it appears that the appellant had been the owner of the property involved; that said property was sold for delinquent taxes and never redeemed; that a tax sale certificate describing said property was issued to Curry county, filed for record, and thereafter by the county sold and delivered to Walter W. Mayes, one of the attorneys for appellee, who delivered same to the treasurer and tax collector of Curry county, who, in turn, issued the tax deed in exchange therefor to appellee; that the said Walter W. Mayes attempted to assign the certificate to plaintiff by indorsement; that said indorsement by Mayes was made in blank; that the name of plaintiff did not appear therein; that it was not dated; that no consideration was specified therein; that the name of plaintiff to whom the tax deed in question was issued appeared no place in the tax proceedings until he appears as grantee in the tax deed. It is assumed that plaintiff, the physical holder of the certificate, presented it to the treasurer and demanded the deed which was issued to him, or that said certificate was presented to the treasurer and demand made by his attorney, Walter W. Mayes, that deed be executed to plaintiff. From these representations, it is claimed that the county treasurer acted in an unwarranted and illegal manner in delivering a tax deed to the plaintiff, and that consequently said tax deed is void.

Appellant relies almost exclusively on the decision of the Territorial Supreme Court in Territory v. Perea, 6 N.M. 531, 30 P. 928. It was held: “In a proceeding by mandamus, by a holder of a certificate of tax sale, indorsed in blank by the original purchaser, to compel the sheriff and ex officio collector of Bernalillo county to execute and deliver to him a deed to the land sold, where it appeared that the defendant, by the order of the board of county commissioners, had previously made and delivered to the administrator and legatee of the original purchaser a deed to the land, after the time of redemption had expired; that the proceedings before the board were regular; and that, at the time of the execution and delivery of the deed, there was no assignment of such certificate of record in the office of the probate clerk,-Held: The sheriff had no power to execute a second deed to the land, while the first deed remained uncanceled, and the court below properly refused to grant a peremptory writ of mandamus to compel him to do so.” Not only is that decision not a binding precedent in the case at bar, but the reasoning therein has been rendered inapplicable because of the changes made in the tax statutes since the time that decision was rendered. The real question decided by the court in that case was that the respondent had no power to issue another tax deed for the reason that by the issuance of the tax deed previously issued he had exhausted his legal authority and that compliance with the alternative writ was legally impossible. The court, speaking of the deed which the collector had been ordered by the county commissioners to make, said: “The sheriff was powerless to resist the order of the board. It was his duty to make the deed. The remedy provided by statute was strictly pursued, and the deed was made as required by law. The sheriff, by the execution of that deed, exhausted his power in the premises, and, so long as that deed remains uncanceled, it is clear that the respondent has no power to execute a deed to the relator.”

It is likewise to be noted that the court put much emphasis on the fact that the application of the statute relative to assignment of tax sale certificates was made to a mandamus case and not to a suit in equity.

In considering the views of the Supreme Court of Iowa, for which our court manifested a respect, and in differentiating it, the first thing Judge McFie said after the citation (Swan v. Whaley, 75 Iowa, 623, 35 N.W. 440) was: “This was an action in equity to cancel a deed.” That was one distinguishing feature. The court emphasized this in concluding its argument on the subject by saying: “ We do not hold that the signing of the name on the back of the certificate, for a valuable consideration, with the intention of transferring the certificate, would not give the holder such an equitable interest in the certificate and the rights accruing by virtue of it as would enable him to enforce them in a court of equity, but we are of the opinion that the transfer of the certificate, under the circumstances shown in this case, did not operate to convey the legal title therein to the relator, so as to enable him to maintain an action of mandamus.” (Italics ours.)

Black on Tax Titles, in section 316, says: “But in some of the states, it has been provided by statute that such certificates ‘shall be assignable by indorsement.’ There is, however, some difference of opinion as to the proper construction of such a statutory provision. We find one case holding that the mere writing of his name by the purchaser on the back of the certificate does not constitute an ‘indorsement,’ and that a person to whom the certificate is delivered by the purchaser, with his name so written upon it, has no authority, by virtue of such delivery, to write a formal assignment thereof above the signature. But this view is not sustained by the weight of authority. On the contrary, the authorities appear to agree that the design of such a statute is to make the certificate quasi negotiable, so that it may pass from hand to hand, carrying all rights with it, by a mere indorsement in blank.”

The one case cited is Territory v. Perea, supra. However, we do not quarrel with the dictum of Judge McFie in that case. We merely say it is not persuasive in the case at bar.

There are a number of distinguishing features between that mandamus action and the case at bar, which is a suit in equity. Some of them are of greater importance than others, but we will mention several. The indications are that our Territorial Supreme Court would have been inclined to adopt the holding of the Iowa Supreme Court in Swan v. Whaley et al., 75 Iowa, 623, 35 N.W. 440, if it had before it for consideration a case to be determined upon equitable principles. In disposing of that case as affording a precedent in the mandamus case, our court called attention to the fact that the Iowa Code provided that when the assignment of the certificate is made the right and title of the assignor immediately vests in the assignee without depending upon any further or future contingency. Our then existing territorial statute (Comp.Laws § 2885) provided to the contrary; it therein being declared: “When the assignment of a certificate is entered upon the record of sales in the office of the probate clerk, it shall vest in the assignee or his legal representatives all the right and title of the original purchaser.” Judge McFie went on to say: “The assignment, therefore, under the statute of New Mexico, is conditional upon something being done by the assignee to have the right and title of the original purchaser vest in him, and, until this is done, the right and title of the original purchaser does not pass to the assignee. *** ‘A certificate of purchase at a tax sale does not convey a legal title. It is, however, evidence of an equitable title to the land, and enables the purchaser to call in the legal title.’ These certificates are the foundation of title, and may ripen into full and complete legal title. *** Assignments of such certificates are required to be entered of record in this territory before the title to them vests in the assignee.” Our Territorial Supreme Court was considering statutes existing in 1892. In 1921 our Taxation Code was entirely overhauled and rewritten, being chapter 133, Session Laws 1921, which controls the case at bar. By section 442, the effect of the tax sale certificate was declared as follows: “The tax sale certificate, when recorded, shall vest in the purchaser, his heirs or assigns *** a complete legal title to the property described therein, subject to redemption as provided by law.” The...