King v. Doherty.

• Decision Date: 21 July 1927
• Docket Number: No. 3017.,3017.
• Citation: 32 N.M. 431,258 P. 569
• Parties: KINGv.DOHERTY.
• Court: New Mexico Supreme Court

32 N.M. 431

258 P. 569

KING

v.DOHERTY.

No. 3017.

Supreme Court of New Mexico.

July 21, 1927.Rehearing Denied Aug. 23, 1927.

Syllabus by the Court

Proposed findings and exceptions to findings are no part of the record proper and must be brought here in the bill of exceptions.

A question of law presented by the pleadings, which could not have been overlooked, and which was necessarily and actually decided, may be reviewed, even in the absence of formal exceptions.

An assessment of real property, under Laws 1899, c. 22, required a description sufficient in itself to identify the land.

Appeal from District Court, Union County; Leib, Judge.

Suit by John King against Joe Doherty to quiet title. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

See, also, 240 P. 810.

Tax deed, based on assessment describing land as 160 acres owned by certain person, giving merely section, township, and range, held insufficient as defense in suit to quiet title. Comp.Laws 1897, § 4032; Laws 1899, c. 22, §§ 18, 25.

Joseph Gill, of Albuquerque, for appellant.

Daniel K. Sadler and Fred S. Merriau, both of Raton, for appellee.

WATSON, J.

King sued Doherty to quiet title to the west half of the northwest quarter and the west half of the southwest quarter of section 15, township 28 north, range 29 east. Doherty denied King's title, and asserted and sought to quiet title in himself under a tax deed. Judgment was for Doherty, and King appeals.

[1] Appellee contends at the outset that the record presents no question for review. He points out that appellant's requested findings and his exceptions to the findings made are not certified by the trial judge as part of the bill of exceptions, but appear certified only by the clerk as part of the record proper. His contention that these documents may not, under such conditions, be considered here is fully sustained by former decisions of this court. Gradi v. Bachechi, 24 N.M. 100, 172 P. 188; Baca v. Ojo del Santo Co., 28 N.M. 499, 214 P. 764; Fulghum v. Madrid, 31 N.M. 91, 240 P. 990.

[2] Twenty-five of the thirty-one assignments of error attack the findings made or the refusal to make those proposed. These therefore go out, in so far as they require exception to support them. Appellee further contends that the remaining six, based upon the admission of evidence, are also unavailable. This question, in view of our conclusion, we need not decide. Although we must consider that no exceptions were made in the trial court, there is still one question of which we think the court was fully advised, and which we must review even in the absence of exception. The question is whether the description on the tax roll was sufficient for a valid assessment. Numerous assignments of error present this question.

Appellee's affirmative answer, which should, no doubt, be considered as a cross-complaint, identified the tax deed on which he relied for title. In the reply appellant alleged that the assessor had not described the land on the tax rolls; that the county treasurer, in attempting to advertise it, had wholly failed to describe it so that it might be identified by the owner, and failed, at the time of the attempted sale to Union county, to insert any description in the tax sale certificate. Thus the issue of insufficient description was brought to the attention of the trial court by the pleadings.

The facts thus alleged in the reply the court found to be true. He found that the land was assessed thus: “Martinez, Epifanio J. real estate Section 15, township 28, range 29 Number of acres 160.” That it was described in the advertised delinquent tax list thus: “Precinct No. 22 Epifanio J. Martinez, undescribed land Sec. 15, T. 28, R. 29, 160 acres.” That as contained in the certificate of sale assigned to Doherty, the description read: “W 1/2 of NW 1/4, W 1/2 of SW 1/4, section 15, township 28, range 29-160 acres.” But that: “That portion of said description reading: ‘W 1/2 of NW 1/4; W; of SW 1/4’ so contained in said duplicate tax sales certificate, as assigned to the said defendant Joe Doherty, was added to the description of said property as contained in the treasurer's copy of the assessment rolls of Union county for the year 1910 and to the description of said property as contained in said tax sales certificate, at some date between the time of the purchase of said certificate by the county of Union, at tax sale and the date of the assignment of said certificate on the 15th day of March, 1916, to the said Joe Doherty, upon the discovery by the treasurer's office of said county that the added portion of said description was the only 160 acres of land owned by said Epifanio J. Martinez in said section 15, or in Union county, New Mexico.”

So the issue of the insufficiency of the description was before the court, not only upon the pleadings, but upon his own findings as to the facts. He could not have escaped deciding it, if he had desired. He did decide it expressly and deliberately. If he erred in the decision, it was through no oversight or misapprehension which might have been prevented by exception taken. So, as we held in Fulghum v. Madrid, supra, no exception was required.

[3] In holding the description sufficient, we think there was error. The attempted assessment was in 1910. In a recent decision, we considered that in an assessment like this, under chapter 22 of the Laws of 1899, “the description appearing upon the tax roll must, in itself, be sufficient to identify the property.” State v. Board of Trustees of Town of Las Vegas, 32 N.M. 182, 253 P. 22. We there held that such is not the rule under the present statute. In so construing the 1899 provision, we had before us and in mind Manby v. Voorhees, 27 N.M. 526, 203 P. 543, upon which appellant here places reliance. He also cites Shackelford v. McGlashan, 27 N.M. 454, 202 P. 690, 23 A.L.R. 75, where it was remarked that a description which omitted the section number “would not have supported the tax sale based upon it.”

Appellee...