Knight v. Fairless.

• Decision Date: 07 December 1917
• Docket Number: No. 1942.,1942.
• Citation: 169 P. 312,23 N.M. 479
• Court: New Mexico Supreme Court
• Parties: KNIGHTv.FAIRLESS.

23 N.M. 479

169 P. 312

KNIGHT

v.FAIRLESS.

No. 1942.

Supreme Court of New Mexico.

Dec. 7, 1917.

Syllabus by the Court.

Counties purchasing tax sale certificates at tax sales are purchasers within the meaning of the statute, by virtue of the provisions of section 23, c. 22, Laws 1899; hence the owner can only redeem from the county by paying to the collector the amount of purchase money, with the specified interest and costs, within three years.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Purchaser.]

Where property is assessed in the name of one not the owner thereof, by a correct description, and the taxes thereon are not paid, and the property is sold for such taxes, and a tax deed is issued therefor, the rightful owner of the property cannot defeat such sale by evidence that the owner returned the same under a blanket assessment which gave no intimation as to the property listed, or its description, where the duty is cast upon the owner by statute “to see that such property is properly listed for taxation on the assessment roll,” and the statute requires real estate to be listed by such a description as will serve to identify it; the statute also providing that the sale of property for delinquent taxes shall not be invalidated by reason of the property being listed in the name of the wrong person.

Appeal from District Court, Otero County; Leahy, Judge.

Action to quiet title by Eli Knight against Rhoda Fairless. Judgment for defendant, and plaintiff appeals. Affirmed.

See, also, 161 Pac. 1110.

Where property is assessed in the name of one not the owner thereof, by a correct description, and the taxes thereon are not paid, and the property is sold for such taxes, and a tax deed is issued therefor, the rightful owner of the property cannot defeat such sale by evidence that the owner returned the same under a blanket assessment which gave no intimation as to the property listed, or its description, where the duty is cast upon the owner by statute “to see that such property is properly listed for taxation on the assessment roll for such year,” and the duty is cast upon the owner by statute to see that such a description is given as will serve to identify the property; the statute also providing that the sale of property for delinquent taxes shall not be invalidated by reason of the property being listed in the name of the wrong person.

J. L. Lawson, of Alamogordo, and Holt & Sutherland, of Las Cruces, for appellant.

E. R. Wright, of Santa Fé, for appellee.

ROBERTS, J.

Appellant, in the court below, sought to quiet title to hortalizas 62, 63, 70, 71, 82, 90, 91, and 100, and lots 1, 2, 3, and 4 of block 22 of the town of Tularosa, Otero county, as against the appellee, and Irby L. Fairless, since deceased. As whatever title Irby L. Fairless had in the property vested in appellee, she alone is interested in sustaining the judgment of the district court. Appellant claimed under certain deeds of conveyance but was not able to trace title to the government. Appellee claimed under a tax deed, issued by the treasurer of Otero county. It appears that the property in controversy had been sold to the county of Otero in the year 1904 for certain delinquent taxes for the year 1902. The tax sale certificate was sold to Irby L. Fairless and the appellee by the county treasurer, in 1911, and subsequently a tax deed was issued to them by the county treasurer. The sale of the property for taxes was under an assessment made in the name of J. F. Miller, who formerly owned the property, but apparently the title had passed to other parties prior to the time the assessment was made. The taxes amounted to more than $25. In 1902 the record shows that a man named Lee owned an interest in the property. Subsequently Cox and Moore conveyed each a one-third interest in the property, but when or how they derived title, if such they had, does not appear. In the year 1902 the agent for Cox, Lee, and Moore made a tax return as follows: “Cox, Lee and Moore, total value of town lots, water rights, real estate, lots, etc., in Tularosa, $6,500.” This was placed upon the tax rolls by the assessor as follows:

“Cox, Lee and Moore, total value of town lots, water rights, real estate, lots, etc., in Tularosa, Receipt No. 1597, 1902, $6,500, value of land and improvements fixed by assessor, approved by county commissioners and fixed as final assessed valuation. Total taxes $222.55, penalty $5.56.”

Upon the trial appellant offered to show that the real estate in question was intended to and was included in such general return. The court refused to admit the offered evidence, and made findings of fact, in which it found that the taxes upon the real estate included in the tax deed, save hortalizas 82 and 91, had not been paid, and upheld the validity of the tax deed. Appellee was decreed to be the owner of all the real estate except hortalizas 82 and 91, title to which was adjudicated to be in appellant. From this judgment this appeal is prosecuted.

Many of the questions presented by appellant have been disposed of by this court in the recent case of Maxwell v. Page, 168 Pac. 492, decided at the present term, and require no further consideration. This is true of the first five propositions argued by appellant.

[1] 1. The first point which requires consideration is as to whether or not counties purchasing at a tax sale are in the same position as other purchasers in so far as the right of redemption is concerned by the owner. Appellant offered to show that in July, 1911, he tendered to the county treasurer the taxes, penalty, and interest due upon lot or hortaliza 100. The property was sold for taxes for the year 1902. Sale was made to the county on April 26, 1904. The three-year redemption expired on April 26, 1907. If title to the property had vested in the county prior to July, 1911, certainly appellant had no right to redeem unless such right was specifically conferred by statute. This matter is settled by section 23, c. 22, Laws 1899, which was in force during the periods named. This section provides for the purchase by the county where the property is not sold to other bidders, and provides:

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

The same section provides:

“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 1 1/2 per cent. per month from the date of such sale,” etc.

In view of this statute the former owner had no right to redeem from the county after the three-year period of redemption had expired.

[2] The remaining questions all involve the same general propositions and may be stated as follows: Where the owner of real estate fails to list the same with the county...