Foster v. Bennett, 4560.

• Decision Date: 14 November 1940
• Docket Number: No. 4560.,4560.
• Citation: 107 P.2d 321,44 N.M. 618
• Parties: FOSTERv.BENNETT et al.
• Court: New Mexico Supreme Court

44 N.M. 618

107 P.2d 321

FOSTER

v.BENNETT et al.

No. 4560.

Supreme Court of New Mexico.

Nov. 14, 1940.

Appeal from District Court, Taos County; Livingston N. Taylor, Judge.

Action by W. P. Foster against A. J. Bennett and others to quiet title to real estate claimed by plaintiff under tax title. From a decree for plaintiff, Adelaide Dunn and John H. Dunn appeal.

Affirmed.

In action to quiet title to real estate in holder of tax title, exclusion of evidence as to payment by adverse claimant of taxes on a certain lot described along with other lands in tax deed, as bearing on the validity of tax deed as to other lands therein described, where such lot was not included in the assessment or tax sale certificate, was not error, since tax sale certificate vested in purchaser, subject to redemption, the right to a complete title to the property described in the certificate. Laws 1934, Sp.Sess., c. 27, § 9.

F. T. Cheetham, of Taos, for appellants.

Floyd W. Beutler and R. Howard Brandenburg, both of Taos, for appellee.

BICKLEY, Chief Justice.

Action by plaintiff-appellee-against numerous persons, including appellants, to quiet title to Lots Nos. 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, and 22, Block 31, of Red River City in Taos County, New Mexico, together with other lots not material to this review. The appellants, by separate answer, denied that plaintiff was the owner in fee simple of the lots above described and alleged ownership in themselves and prayed dismissal of the cause insofar as it involved them and said lands. The trial court found for the plaintiff and entered a decree quieting title in him, from which defendants, the Dunns, have appealed.

Plaintiff derives title from a tax deed. When this deed was offered in evidence, it was objected that the assessment upon which the tax sale certificate is based, which certificate, in turn, is the basis of the tax deed, was made in the name of unknown owners. Appellant points to Sec. 22 of Chapter 27, S.L.N.M.1934, Sp.Sess. which prohibits the use of the term “Unknown Owners” except in instances where no ownership is claimed or can be reasonably ascertained. This is followed by the direction: “It shall be the duty of all assessing authorities to ascertain, from the record of the County Clerk, or from any other source available, the name of the owners of all real estate located within their respective counties and to place and carry all real estate in the name of the owner as ascertained.”

However, said section continues: “When any property is placed on the assessment roll in the name of and as property of unknown owners the same proceedings shall be had as to such property as provided for in this Act against the property of known owners and the proceedings taken with respect to such property shall be of like effect as if the property were assessed to known owners. No sale of any real property, land or lot, or parts thereof, or any property for delinquent taxes shall be considered invalid on account of its having been charged on the tax rolls in any other name than that of its record owner; Provided, such land or lot or property be in other respects sufficiently described on the tax rolls, and the taxes for which same is sold be due and unpaid at the time of sale.”

[1][2] From this we conclude that the provision relied upon by appellant in resistance to the validity of the assessment is directory and that if, as appears in the case at bar, the taxpayer failed to make a return of his property as required by law, or timely object to the manner of its assessment, and his property is sufficiently described in other respects on the tax rolls, and the taxes on said property remain due and unpaid at the time of the sale thereof, and the property has not been redeemed from the sale, the taxpayer may not, in a suit involving title to the property, successfully challenge the assessment solely on the ground that the property was assessed in the name of “Unknown Owners”. In addition to the support given this view in the portion of Sec. 22 of the Act last heretofore quoted, we note that Sec. 24 of the same Act declares that: “In all controversies and suits involving title to property, claimed and held under and by virtue of a tax deed executed substantially as aforesaid by the treasurer, the party claiming adverse title to that conveyed by such deed shall be required to prove, in order to defeat the said title, either that the said property was not subject to taxation for the year or years named in the deed, or that the taxes had been paid before...