Damon v. Carmean

• Decision Date: 31 July 1940
• Docket Number: No. 4557.,4557.
• Citation: 44 N.M. 458,104 P.2d 735
• Parties: DAMONv.CARMEAN et al.
• Court: New Mexico Supreme Court

44 N.M. 458

104 P.2d 735

DAMON

v.CARMEAN et al.

No. 4557.

Supreme Court of New Mexico.

July 31, 1940.

Appeal from District Court, Roosevelt County; Harry L. Patton, Judge.

Suit to quiet title by George M. Damon against M. D. Carmean and another. From an adverse judgment, plaintiff appeals.

Affirmed.

In tax deed holder's suit to quiet title against record owners of land where owners in answer alleged that they had tendered amounts of taxes to county treasurer but were unable to get a statement from him of the amounts due, evidence was admissible to show tender which, completed by payment, would relate back to a time antedating the tax sale and forestall the right to sell land as against contention that evidence impeaching tax sale was inadmissible under statute. Laws 1934, c. 27.

R. E. RowelIs and Harold O. Gore, both of Clovis, for appellant.

T. E. Mears and T. E. Mears, Jr., both of Portales, for appellees.

SADLER, Justice.

This appeal presents for review a judgment canceling a purported tax deed to lands in Roosevelt County. It was relied upon by plaintiff in a suit to quiet title against defendants, record owners of the land. The defendants were ordered to reimburse plaintiff within a time stated the amount paid for the tax certificate on which the deed was based plus all additional amounts paid out by him on account of taxes and he was given a lien on the land to secure this judgment in his favor.

The defendants answered interposing numerous defenses to the plaintiff's complaint as, for instance, that there was no tax sale held; that the purported tax deed and the certificate upon which it was based were both issued and dated the same day contrary to the requirement of Laws 1934, c. 27, § 17, as amended by Laws 1937, c. 180, § 1, providing that tax deeds shall issue two years from date of tax sale certificate; and, particularly, that the defendants, who were non-residents, had made diligent efforts within the period of redemption to secure from the county treassurer a statement of the amount of taxes against said land, delinquent and unpaid, and had tendered and offered to pay to him the amount thereof and had at all times stood ready, able and willing to pay said taxes renewing said tender in the answer filed, but were unable to get a statement from him of the amounts so due. Other defenses also were put forward. The trial court found generally all of the issues in favor of the defendants and rendered judgment as aforesaid.

[1] A minor claim of error may be disposed of very speedily. It challenges the action of the trial court in making and filing specific findings of fact and conclusions of law on January 12, 1940, following entry of final judgment on October 27, 1939. They were filed too late and cannot be considered. The trial court had lost jurisdiction of the judgment for this purpose. Hale v. Farmers' Electrical Membership Corporation, 44 N.M. 131, 99 P.2d 454. However, this is not decisive. We simply disregard the findings thus unseasonably made and proceed with our review of the judgment.

The principal claim of error challenges the action of...