Heron v. Garcia, 4862.

Decision Date21 November 1944
Docket NumberNo. 4862.,4862.
Citation48 N.M. 507,153 P.2d 514
PartiesHERONv.GARCIA, County Treasurer, et al.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Rio Arriba County; William J. Barker, Judge.

Action by Kenneth A. Heron against Frank Garcia, Treasurer of Rio Arriba County, N. M., and others to have a redemption certificate and a tax deed canceled, and to obtain a tax deed. From a judgment dismissing the complaint as to named defendant, plaintiff appeals.

Judgment affirmed.

Where a tax deed and grantee's redemption certificate under a subsequent tax sale had not been canceled on ground that they were fraudulent and void, action by assignee of certificate of tax sale under subsequent sale to compel county treasurer to issue a tax deed to assignee after grantee under prior sale had redeemed, was premature. 1941 Comp. § 76-713.

Kenneth A. Heron, of Chama, for appellant.

David W. Carmody and Reed Holloman, both of Santa Fe, for appellees.

BRICE, Justice.

This action was brought by the appellant against appellee and three other defendants to have cancelled a redemption certificate and tax deed to certain real estate situated in Rio Arriba County; and to secure an order directing the appellee as treasurer of Rio Arriba County “to forthwith issue to the plaintiff (appellant) a statutory tax deed in conformity with the provisions” of a tax sale certificate issued to appellant covering the same land.

From an order, on motion of appellee, dismissing appellant's complaint as to him (one of the defendants below), this appeal has been prosecuted.

The question is whether the complaint states facts sufficient to constitute a cause of action against appellee. The alleged facts are substantially as follows:

A patent was issued by the United States in 1901 conveying the land in suit to one Andrew P. Morris. This land was not assessed for taxes nor were any taxes levied against it for the years of 1931 to 1936, inclusive, nor was it sold for taxes levied for any of those years. On the 14th day of May, 1937, the defendant Tafoya secured a description of the land from the United States Land Office, and such description “was imposed” upon the 1931 to 1936 tax rolls of Rio Arriba County on or about that date by the then treasurer of Rio Arriba County, or by one of his deputies, and the land was then assessed by the treasurer for each of the years named. The treasurer then set opposite the assessments the following notation: “Sold to State 12-6-35 Certificate No. 1294.” and upon this notation the treasurer executed a tax sale certificate, and later issued to defendant Tafoya the tax deed in question, based upon such fraudulent certificate. The claims of the defendants (except appellee) are based upon the same illegal, void and fraudulent transactions stated.

For the year of 1939 the taxes were legally assessed and levied against the property in question, and it was sold to the State of New Mexico, as provided by law. On the 22nd day of September, 1942, Tax Certificate No. 2333, based upon the 1939 assessment, was assigned by the treasurer of Rio Arriba County to the appellant. On the first day of February, 1944, the appellant demanded of appellee a tax deed based upon tax sale certificate 2322, and offered to pay all taxes, penalties, interest and costs due the county of Rio Arriba, but the appellee refused to issue such deed “on the ground that the property involved had been redeemed from sale by defendant Tafoya and that a certificate of redemption had been issued to the said Tafoya.” A copy of the redemption certificate is attached to appellant's complaint.

It is alleged that “the entire proceeding upon which the tax deed No. 82 (that issued to Tafoya) was issued without authority of law and is arbitrary and fraudulent.” That it was carried out by defendant Tafoya and Martinez (the former treasurer) with the express intention of depriving the owner of the land involved. That the defendants Trujillo and Antonietti had knowledge of the transactions culminating in the issuing of the tax deed to Tafoya, and claim some interest in the property by virtue thereof, and that such claim of title is illegal, void and fraudulent.

As a basis of his cause of action against appellee, appellant alleged:

“That on the first day of February, 1944, more than two years having elapsed since the said sale was had, the plaintiff appeared before the defendant Frank Garcia, Treasurer of Rio Arriba County, as above, and offered to surrender to the said defendant Frank Garcia the original tax sale certificate No. 2322 and to pay to him all taxes, penalty,...

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10 cases
  • Morris v. Merchant
    • United States
    • New Mexico Supreme Court
    • February 6, 1967
    ...court may have based the decision in whole or in part upon other principles. Atma v. Munoz, 48 N.M. 114, 146 P.2d 631; Heron v. Garcia, 48 N.M. 507, 153 P.2d 514; Flanagan v. Benvie, 58 N.M. 525, 273 P.2d 381; Ortiz v. Gonzales, 64 N.M. 445, 329 P.2d 1027; Albuquerque National Bank v. Johns......
  • State v. 5TH Judicial Nominating Com'n.
    • United States
    • New Mexico Supreme Court
    • May 18, 2007
    ...Laumbach v. Bd. of County Comm'rs of San Miguel County, 60 N.M. 226, 233, 290 P.2d 1067, 1070 (1955) (quoting Heron v. Garcia, 48 N.M. 507, 510, 153 P.2d 514, 515 (1944)). {10} The issue before us is whether the Commission has a constitutional duty to actively solicit qualified applicants s......
  • Roseberry v. Phillips Petroleum Co.
    • United States
    • New Mexico Supreme Court
    • February 28, 1962
    ...to this rule. See, Armijo v. Shambaugh, 64 N.M. 459, 330 P.2d 546; Ortiz v. Gonzales, 64 N.M. 445, 329 P.2d 1027; Heron v. Garcia, 48 N.M. 507, 153 P.2d 514; Flanagan v. Benvie, 58 N.M. 525, 273 P.2d The rule that an order sustaining a general motion to dismiss for failure to state grounds ......
  • Laumbach v. Board of County Com'rs of San Miguel County, 5924
    • United States
    • New Mexico Supreme Court
    • November 3, 1955
    ...the relief sought that it is an action in mandamus, it will be so treated. This much is made clear by our language in Heron v. Garcia, 48 N.M. 507, 153 P.2d 514, 515. We "Ordinarily the legal action of mandamus is the proper remedy to compel the performance of an official act by a public of......
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