Hiltscher v. Jones.

• Decision Date: 26 December 1917
• Docket Number: No. 1972.,1972.
• Citation: 170 P. 884,23 N.M. 674
• Court: New Mexico Supreme Court
• Parties: HILTSCHERv.JONES.

23 N.M. 674

170 P. 884

HILTSCHER

v.JONES.

No. 1972.

Supreme Court of New Mexico.

Dec. 26, 1917.Rehearing Denied Feb. 23, 1918.

Syllabus by the Court.

Where property is “struck off to the county as the purchaser” at a delinquent tax sale, under the provisions of section 22, c. 22, Laws 1899, the owner is entitled to redeem said property at any time within 3 years from the date of such sale. The day the property is struck off to the county is the date of the sale, and the tax sale certificate thereafter issued is only written evidence that the sale has taken place. The fact that the certificate is not recorded for 2 1/2 years thereafter does not affect the period of redemption. Hence, where real estate is struck off and sold to the county, and the certificate is not recorded for 2 1/2 years thereafter, and is then sold to a purchaser, and thereafter, but not within 3 years from the date of the sale, within 3 years from the date of recording such certificate, the owner of the property pays to the county treasurer the amount of money required to redeem, if the right existed, such owner was not entitled to redeem, because of his noncompliance with the statute, and the rights of the owner of the certificate were not affected by such purported redemption.

[Ed. Note.-For other definitions, see Words and Phrases, Date.]

Appeal from District Court, Sierra County; Mechem, Judge.

Action by Max Hiltscher against Gertrude Minnis Jones. Judgment for defendant on the pleadings, and plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

Where property is “struck off to the county as the purchaser” at a delinquent tax sale, under the provisions of section 22, c. 22, Laws 1899, the owner is entitled to redeem said property at any time within three years from the date of such sale. The day the property is struck off to the county is the date of the sale, and the tax sale certificate thereafter issued is only written evidence that the sale has taken place. The fact that the certificate is not recorded for 2 1/2 years thereafter does not affect the period of redemption. Hence, where real estate is struck off and sold to the county, and the certificate is not recorded for 2 1/2 years thereafter, and is then sold to a purchaser, and thereafter, but not within three years from the date of the sale, but within three years from the date of recording such certificate the owner of the property pays to the county treasurer the amount of money required to redeem, if the right existed such owner was not entitled to redeem, because of his noncompliance with the statute, and the rights of the owner of the certificate were not affected by such purported redemption.

E. D. Tittman, of Hillsboro, for appellant.

H. P. Owen, of Los Lunas, for appellee.

ROBERTS, J.

This action was brought by the appellant in the district court of Sierra county to quiet title to the “Wisconsin” and “83” mining claims. The answer of the defendant, Gertrude Minnis Jones, sets up all the essential facts as follows: The two claims in dispute were patented to J. G. Hart in 1892. In the year 1901, these claims were taxed as provided by the law in the name of J. G. Hart. The tax was not paid, and the properties were sold to the county of Sierra on November 17, 1902. The sale was regular in every respect, and on February 14, 1905, the tax certificate to said properties was recorded. On November 20, 1905, the tax certificate was assigned to John Buteke and Fred Hiltscher. A tax deed was later issued to these assignees. Plaintiff-appellant claims from these assignees by deed. On May 31, 1906, the attorneys for the estate of J. G. Hart paid to the then treasurer and collector of Sierra county the amount of the tax for 1901 with interest, and all taxes up to and including the year 1905, with interest, and a certificate of redemption was issued to the said attorneys. To the answer plaintiff made no reply, but filed a motion for judgment on the pleadings. Defendant also filed a motion for judgment on the pleadings. Plaintiff's motion was overruled, and defendant's motion was granted, and plaintiff appealed.

The point presented by this appeal is whether the time for redemption begins to run from the time the property is “struck off to the county as the purchaser,” or from the time the certificate of sale is recorded in the office of the probate clerk. The trial court concluded, as a matter of law:

“That by section 23 of the tax law of 1899, requiring the recording of a tax sale certificate, such recording is made a necessary part of a tax sale transaction, and the period within which redemption may be made does not commence to run until such certificate is so recorded, and that, for the purpose of computing the period within which redemption may be made, the date of the sale must be taken as of the date of recording the tax sale certificate.”

Section 23, c. 22, Laws of 1899, in so far as material reads as follows:

“After receiving the amount for which any real estate shall be sold, the collector shall execute and deliver to the purchaser thereof a certificate of sale containing a description of the property sold (and various other facts which are not material to this case) that the collector by virtue of the authority vested in him by law, has sold and does convey said real estate to said purchaser, his heirs and assigns, subject to the right of the former owner to redeem the same within three years from date of sale by paying to the purchaser, his heirs or assigns, the amount paid therefor at such sale, with interest thereon at the rate of one and one-half per cent. per month from date of sale. Such certificate must be recorded in the office of the probate clerk of such county, in a book to be kept for the purpose of recording such certificates and when so recorded, shall vest in the purchaser, his heirs or assigns, a complete legal title to the real estate described therein subject, however, to redemption as herein provided, and such property shall thereafter, unless redeemed, be assessed in the name of the purchaser, or his assigns, but the former owner shall have the right to redeem the same at any time within three years from the date of sale by paying to the collector then in office for the use of the purchaser the amount of purchase money with interest at the rate of one and one-half per cent. per month from date of such sale. ***

The collector, shall keep a book of sale containing the date of sale, description of property sold, name of purchaser and amount for which sold. Upon the redemption of any property sold as herein provided, the collector shall enter the fact of such redemption upon his book of sales, and shall issue to the person redeeming a certificate of redemption. ***

Counties purchasing at tax sales, shall be deemed purchasers within the meaning of the act.”

Section 22 of said act, in so far as material, reads as follows:

“*** In case any property ordered to be sold in too large a tract or tracts to be conveniently sold, the said collector shall offer the smallest tract in acres for which any one shall bid the amount of the tax and penalty, such tract to be as nearly as may be a square body beginning at the northeast corner of the whole tract. In case the property sold shall realize more than enough to pay the amount due, the surplus shall be paid over by such collector, to the owner of such property. Each lot or parcel of property...