Greene v. Esquibel

• Decision Date: 21 April 1954
• Docket Number: No. 5671,5671
• Citation: 272 P.2d 330,58 N.M. 429,1954 NMSC 39
• Parties: GREENE v. ESQUIBEL et al.
• Court: New Mexico Supreme Court

Page 330

272 P.2d 330

58 N.M. 429

GREENE v. ESQUIBEL et al.

No. 5671.

Supreme Court of New Mexico.

April 21, 1954.

Rehearing Denied June 22, 1954.

Manuel A. Sanchez, Santa, Fe, for appellants.

M. A. Threet, Albuquerque, for appellee.

Ruben Rodriguez, Tax Commission Atty., Santa Fe, amicus curiae.

LUJAN, Justice.

From a judgment quieting plaintiff's title, under the description contained in his complaint, defendants' have appealed.

Plaintiff bases his title upon a tax deed issued to him by the State Tax Commissioner and the defendants Antonio J. Esquibel and Onorata L. Esquibel, his wife, base their title upon a Spanish warranty deed issued to them by Jose Emilio Salazar and Margarita A. Salazar.

Defendants urge several grounds for a reversal of the judgment, which they argue under six points, but before discussing these we shall summarize briefly the factual situation as disclosed by the record.

The land in question was patented to Jose Emilio Salazar by the United States of America, July 10, 1919, and recorded in the office of the County Clerk of Rio Arriba County, May 20, 1921. On August 3, 1938, Jose Emilio Salazar and Margarita A. Salazar, his wife, conveyed said land by a Spanish warranty deed to Antonio J. Esquibel, one of the defendants, now deceased. Mr. Esquibel did not render said property for taxes for the years 1937, 1938, 1939 and 1940, although the same was subject to taxation. It continued to be assessed in the name of Jose Emilio Salazar. None of the defendants paid any taxes on the property for the years 1937, 1938, 1939 and 1940. On January 20, 1942, the property was sold for the delinquent taxes for the year 1937 to the State of New Mexico. It not having been redeemed within two years as provided by law a tax deed was issued by the County Treasurer of Rio Arriba County to the State of New Mexico, under date of July 23, 1946. On December 20, 1950, the State Tax Commission conveyed the property by tax deed to the plaintiff, E. W. Greene, which deed was filed for record on January 15, 1951, with the County Clerk of Rio Arriba County. On March 26, 1952, the State Tax Commission issued to the plaintiff a correction deed, which appears of record in Book 35, page 278, of the records of Rio Arriba County.

Under defendants' point one the plea of adverse possession of ten years is attempted to be sustained by showing that the defendant, Antonio J. Esquibel, had been in possession and actual occupation of the land for more than ten years prior to the filing of the complaint herein, towit: From August 3, 1938, to the time of his death on May 31, 1951, a date subsequent to the institution of this suit. This claim is without merit. The general rule is stated in 2 C.J., Adverse Possession, Sec. 162, as follows:

'Where, during the running of the statute of limitations in favor of the adverse occupant of land, the land is forfeited to the state for taxes, the general rule is that continuity of possession is interrupted for the reason that the statute of limitations does not run against the state in the absence of some special provision to that effect.' See also 2 C.J.S., Adverse Possession, Sec. 152.

In the case at bar the State of New Mexico owned the land from the year 1946 until it was sold to W. E. Greene in 1950, and adverse possession did not run during the time the State was the owner of the property; and ten years had not elapsed since the state parted with title in favor of the plaintiff. See, Burgett v. Calentine, 56 N.M. 194, 242 P.2d 276; Pratt v. Parker, 57 N.M. 103, 255 P.2d 311.

Under point two it is argued that the county treasurer was guilty of constructive fraud in advising Antonio J. Esquibel's predecessors in title that the property involved herein was free and clear of taxes for the years 1937 and 1938, and that sale of the property for taxes and all subsequent deeds issued pursuant to sale are void. The charge of fraud is one easily made, and the burden is upon the party alleging it to establish its existence, not by doubtful and inconclusive evidence, but clearly and conclusively. Fraud cannot be presumed. It must be proved by clear and satisfactory evidence. It is true that fraud need not be proved by positive and direct evidence, but may be established by facts and circumstances sufficient to support the conclusion of fraud. But whether it be shown by direct and positive evidence, or established by circumstances, the proof must be clear and convincing, and such as to satisfy the conclusion of the chancellor, who should be cautious not to lend too ready an ear to the charge. Frear v. Roberts, 51 N.M. 137, 179 P.2d 998.

The court found:

'That the defendants have failed to prove by a preponderance of the evidence that at the time Antonio J. Esquibel purchased the property in suit from Jose Emilio Salazar, or at any other time subsequent thereto, that he inquired of the County Treasurer of Rio Arriba County, New Mexico, as to any other taxes that might be unpaid or that he offered to pay any other unpaid taxes, upon the property in suit.'

Based upon said finding the court concluded as a matter of law:

'That neither the County Treasurer of Rio Arriba County, nor his deputy, were guilty of any actual or constructive fraud upon the defendants, or either of them.'

We will not review the evidence; suffice it to say that we have scanned all of the evidence appearing in the record and believe that there was a substantial conflict as to whether or not Antonio J. Esquibel and Jose Emilio Salazar called at the Treasurer's office and were by him informed that there were no taxes due on the land involved herein for the years 1937 and 1938. This being so, it was for the trier of the facts to determine its weight, and also the credibility of the witnesses and it is not the duty of this court to do so. Kilpatrick v. State, 58 N.M. 88, 265 P.2d 978, and cases cited. It has been repeatedly held by this court that where there is a substantial conflict in the evidence the verdict of the jury or the findings of the court will not be disturbed unless error of law occurred upon the trial. Kilpatrick v. State, supra.

It is next contended that the assessment was void for the reason that the property was not assessed in the school district where it was located and that the tax sale and all subsequent deeds issued pursuant thereto are void. We are unable to agree with this contention. Section 76-203 of 1941 Comp., provides:

'Every person, firm, association or corporation shall, in each year, make a declaration of all property subject to taxation of which he is the owner * * * together with a statement of the county in which the property is situated on which it is liable for taxation, and a description of all real estate, such as would be sufficient in a deed to identify it so that title thereto would pass, * * *.' (Emphasis ours.)

The tax is not a district tax. It is a county tax, levied equally and uniformly upon all taxable property in the county. It is a general county tax, not levied by districts, but spread generally, over all taxable property. Raynolds v. Swope, 28 N.M. 141, 207 P. 581. The location and identity of the property is a question for the trier of the facts. The school district need not have been placed on the assessment roll; there is nothing in the above section that requires the owner of the property or the taxing officials to designate the school district wherein the property is located; and that it not been there, the sale would have been free from the question now made. The notation on the tax roll, indicating that the land was in a particular school district, was not an essential part of the listing of the property for taxation, and did not affect the validity of the tax sale, though the land was not in fact in such school district. A school district is a part of the county's territory divided for taxation for school purposes.

It is further contended that the taxing authorities committed fraud (constructive) in providing erroneous addresses for Jose Emilio Salazar and thus preventing him from receiving proper notice of his assessment, and, therefore, the tax sale and all subsequent deeds issued pursuant thereto were void. We do not agree with this contention. If a valid assessment and levy had been made of the taxes, the county treasurer's failure to give a proper notice would not invalidate the tax sales. That like various other duties enjoined by statute, can only be regarded as directory to the officer; the neglect to give a proper notice or failure to give any notice at all would not discharge the tax, or present a valid obstacle to the collection thereof.

Section 76-402, 1941 Compilation, provides:

'After the receipt of said assessment roll by the county treasurer, he shall, be letter or post card, addressed, stamped and mailed, notify each taxpayer of the amount of his tax, but the failure to give such notice shall not invalidate the assessment, levy, judgment or sale, or any proceedings taken for the collection of taxes.' (Emphasis ours.)

The requirement that the county treasurer give written notice to each taxpayer of the amount of his tax adds nothing to the definite imposition of the tax and the equally definite imposition of a penalty to follow upon delinquency. This provision is directory, but not mandatory. It is intended for the benefit and convenience of the taxpayer, but certainly not for his relief or advantage.

It is also claimed that the tax deed from the State Tax Commission to the plaintiff is void for the reason that it was issued more than ten years after the delinquency of the taxes involved in the tax sale. The record does not bear out this claim. The property was sold for delinquent taxes on January 20, 1942, which was less than five years from the date of delinquency of the 1937 taxes. Tax sale certificates were duly issued to the State of New Mexico, subject to the right of redemption. The property was not redeemed, and on July...