Gore v. Cone

• Decision Date: 22 August 1955
• Docket Number: No. 5898,5898
• Citation: 1955 NMSC 75,287 P.2d 229,60 N.M. 29
• Parties: W. E. GORE and A. R. Brownfield, Plaintiffs-Appellees. v. Gordon CONE, Defendant-Appellant,
• Court: New Mexico Supreme Court

Page 229

287 P.2d 229

60 N.M. 29

W. E. GORE and A. R. Brownfield, Plaintiffs-Appellees. v. Gordon CONE, Defendant-Appellant,

No. 5898.

Supreme Court of New Mexico.

Aug. 22, 1955.

Cowan & Schubert, Hobbs, Ward & Carrell, Lovington, for appellant.

Heidel & Swarthout, G. T. Hanners, Howell Spear, Lovington, for appellees.

KIKER, Justice.

In this case, the defendant, appellant here, Gordon Cone, was the owner of an undivided one-half interest in a large number of town lots at Lovington. The lots were unimproved and were rented to Benton Mosley for pasture. Mosley paid rent to the defendant each of the years 1934 to 1944 inclusive. There is no claim that Mosley was ever delinquent during that time in the payment of any rent upon said property.

In 1938 taxes were not paid on the property; and again in 1940 the owners failed to pay the tax levied thereon. The property was sold for taxes so delinquent. There was no redemption from any sale during the two years allowed therefor.

More than two years after the tax sales, tax deeds were issued by the county treasurer and delivered to the State Tax Commission. The last deed was received by the State Tax Commission in the year 1944.

After the year 1944, Mosley paid no more rent to the defendant Cone.

In the year 1947 after the state had held tax deeds to the land for more than three years, Mosley applied for and received a tax deed to the real estate in question. In the year 1952 he sold it by quitclaim deed executed by him and his wife to the plaintiffs in this case.

Plaintiffs brought this suit to quiet title against defendant, Cone. Plaintiffs claim to be the owners by virtue of the deed received from Mosley, to all of the surface rights of the land involved in the suit, and to three-fourths of the mineral rights in and under said land. Defendant answered, claiming to be the owner of a one-half undivided interest in the real estate, including both surface rights and mineral rights.

After this suit was instituted, plaintiff Gore sold whatever interest he had in the property to the plaintiff A. R. Brownfield.

After trial, judgment was entered establishing the title, in fee simple, of plaintiff Brownfield to the properties involved in the suit.

Defendant has appealed, assigning for reversal nineteen alleged errors. The separate assignments, however, have been so grouped that two propositions only are discussed in appellant's brief.

The first of these propositions is that a tenant in possession of property cannot acquire a title superior to his landlord's through the purchase of a tax title.

The answer of plaintiff to defendant's Point I just stated is that in the absence of special circumstances imposing duty upon a tenant to pay taxes, tenant cannot be prohibited from acquiring the landlord's title by tax deed.

Nothing is shown in the brief as to the nature of the rental contract or as to its terms, except the bare fact that for the use of the land for pasture for his cattle, Mosley, the alleged tenant, paid to the defendant $35 per year. Whether the contract was oral or written does not appear, and nothing is said about the term for which the tenancy should exist.

Appellant asserts that Mosley was the tenant of the defendants at the time he purchased the property from the state, and that he continued to be the tenant of the defendants until 1952, when he sold the property by quitclaim deed to plaintiffs Gore and Brownfield. Upon that premise, defendant cites cases from several courts to the effect that a tenant in possession may not without the consent of his landlord buy a tax title to the property held by him. In support of his contention that a tenant while in possession cannot buy a tax title to the property belonging to his landlord, defendant cites Bailey as Administrator v. Campbell, 82 Ala. 342, 2 So. 646, 647, which states that in case the tenant buys at tax sale the presumption in law would be that he takes the assignment of the certificate of purchase or even buys at tax sale for the protection of his own interest, which

'* * * would be equally affected with the reversionary interest of the landlord, just as in the analogous case of mortgagor and mortgagee, where the tax sale overrides the interest of the one as well as that of the other. * * * The result would be that every attempted purchase made by a tenant of rented premises at a tax sale would operate merely as a payment of the tax, and not as a valid purchase.'

Appellant cites also and quotes from Brunson v. Bailey, 245 Ala. 102, 16 So.2d 9. A later Alabama case holding as do the cases cited by appellant is Crim v. Holcombe, 254 Ala. 692, 49 So.2d 277.

Appellant also calls attention to the Arizona holding that a tenant who is under no obligation to pay taxes may properly acquire tax deed to his landlord's property, but that he may not do so if in default in payment of his rent. The case cited is Eckert v. Miller, 57 Ariz. 94, 111 P.2d 60.

There are two later Arizona cases, one of which is cited by appellee, both holding that a tenant in possession may purchase a tax title to the rented property when not under special obligation to pay the taxes. These cases are mentioned because of the very interesting situation which arose between the parties. In Sanguinetti v. Quon, 59 Ariz. 298, 126 P.2d 804, taxes became delinquent without the knowledge of the landlord and the property was sold to the state. The tenants then acquired the property in the name of their infant son; and it was held that a tenant is not prohibited from buying a tax title to rented premises so long as there is no special fiduciary relation in regard thereto. The other of the two cases is Quon v. Sanguinetti, 60 Ariz. 301, 135 P.2d 880, 881. In this case, Quon, who had leased the property in question to Sanguinetti for a term of 5 years, brought suit after Sanguinetti had bought the tax title to recover the balance of rent due for the 5 year term. Trial of this case was before the court without a jury, and resulted in judgment in favor of Quon, the former owner, for $1,256.42, the remainder of the rent owing for the term.

The sale for taxes was set up by Sanguinetti, who had stopped paying rent after taking deed in his son's name, and Quon admitted that Sanguinetti had bought the property but made his claim for the balance of rent for the full term. The Supreme Court of Arizona held that the Sanguinettis were within their rights when they purchased the tax title of the premises and that thereby they acquired the property involved, pointing out that it had been so held in the case of Sanguinetti v. Quon, supra. Then the court, in Quon v. Sanguinetti, supra, said:

'There is a wide distinction between the rights of defendants to buy the adverse title and their right to assert such title against their landlord.'

A quotation is then taken in the opinion from 32 Am.Jur. 118, Sec. 113, as follows:

'* * * Some authorities have expressed the view that a tenant cannot acquire a title which is adverse to his landlord's title, and that where he does so it will be presumed that his purchase was made for the benefit of and to protect the landlord's possession. Others take the position that while the relation of landlord and tenant prevents the tenant from setting up any adverse title against his landlord, it does not prevent him from buying up a title to be asserted after termination of the tenancy, and the redelivery of the premises to the landlord. Under this rule, a tenant may acquire a title other than that which his landlord has or had, but he cannot avail himself of it while retaining possession of the land.'

In that case there was a written lease which bound the Sanguinettis to pay rent for the full five years, and the court held they must do so.

Appellant cites also the following cases, as well as text declarations, supporting the proposition contended for: Chrisman v. Hough, 146 Mo. 102, 47 S.W. 941; Connecticut Mutual Life Insurance Co. v. Bulte, 45 Mich. 113, 7 N.W. 707.

Appellant also cited New Mexico cases holding that one cotenant cannot, by the purchase of a tax title, defeat the title of other cotenants. He cites: Smith v. Borradaile, 30 N.M. 62, 227 P. 602, and Torrez v. Brady, 37 N.M. 105, 19 P.2d 183, and claims that a tenant bears a similar relationship to his landlord as cotenants, one to another. Next he cites Zaring v. Lomax, 53 N.M. 273, 206 P.2d 706, and Matlock v. Mize, 55 N.M. 218, 230 P.2d 246, both holding that a life tenant may not defeat the future estate of the remainderman by acquiring for himself a tax title to the property; and argues that as the life tenant is to the remainderman, so is the tenant in possession for a term, to the landlord. Appellant also likens the tenant to one of two or more successive mortgagees, citing Riley v. Bank of Commerce of Roswell, 37 N.M. 338, 23 P.2d 362; and argues that just as one of two successive mortgagees cannot acquire a tax title to the real estate and thereby destroy the rights of another mortgagee, so a tenant in possession cannot defeat his landlord.

Appellant requested findings of fact and conclusions of law and assigned error upon failure of the court to give some of those requested. Among others, there was request numbered 3, which asked the court to find that Mosley held the property in question as tenant continuously until he delivered possession of the premises to Gore and Brownfield. The court declined to make this and other findings requested by appellant.

Though error is assigned upon the failure of the court to give the requested findings of fact and certain requested conclusions of law, there is no argument in appellant's brief and no testimony is set out in the brief bearing upon the findings requested. The argument is purely of the application of the law to facts as appellant has assumed them to be. It has been repeatedly held by this court that the findings of fact made by the District Court, unless set aside by the Supreme...