Langhurst v. Langhurst

Decision Date30 November 1945
Docket NumberNo. 4894.,4894.
Citation49 N.M. 329,164 P.2d 204
CourtNew Mexico Supreme Court


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

Suit by Florida Langhurst against Christopher Langhurst, individually and as executor of the estate of Henry Langhurst, deceased, and another, for declaratory judgment regarding status of real property as community property or as separate property of deceased, which suit was consolidated with petition for probate of will of deceased. From an adverse judgment, plaintiff appeals.

Affirmed in part and reversed in part and remanded with directions.

The Supreme Court would not determine that trial court erred in refusing to hold that proceeds of bean crop represented solely rent and hence not the community property, in view of presumption of correctness attending decisions of trial court as to the facts, and the unsatisfactory state of record.

Mechem & Hannett and Joseph L. Smith, all of Albuquerque, and Albert O. Lebeck, of Gallup, for appellant.

Denny & Glascock, of Gallup, for appellees.

BICKLEY, Justice.

Plaintiff, Florida Langhurst, and the deceased Henry Langhurst, were married on May 28, 1931. At that time Henry Langhurst, now deceased, was the owner of some ranch lands which are the principal subject of this lawsuit. There lands, worth about $5000, were sold by the County of McKinley to the state for delinquent taxes in 1936 and conveyed to the state, and repurchased from the state by the deceased Langhurst in January 1943 for $30.43. The paramount question in this review is: Was the trial court in error in holding that this land was the separate property of Henry Langhurst? Largely, the answer is to be found in our statutes concerning real property sales for delinquent taxes. Our citations will be to the 1941 Compilation, because, so far as pertinent to a disposal of this case, they are not essentially different from the 1934 Statutes, as amended in 1937, and are unaffected by the 1943 amendments.

Sec. 76-740 provides:

‘The person whose title to property has been extinguished by the issuance of a tax deed to the state shall have the first and prior right to repurchase such property, provided that application for such repurchase is received by the state tax commission before any other application to purchase such property is received and accepted by said commission.’

It is further provided in the same section:

‘Any person entitled to repurchase under the provisions of this section shall not be required to pay more than the amount of the delinquent taxes, penalties, interest and costs accrued against the property sought to be so repurchased, except that there shall, in any case in which such repurchase is made by contract, be charges for interest on deferred payments and for current taxes.’

It is to be noted that the next following section (76-741) deals with purchase as distinguished from repurchase. Purchase, under 76-741, is not confined to one whose title to the property has been extinguished, nor is the price which the state may charge limited as it is in Sec. 76-740.

We think the exercise by the ‘person whose title to property has been extinguished by the issuance of a tax deed to the state,’ of the exclusive privilege accorded to him is nothing more nor less than redemption of the property and the title thereto which has been so extinguished.

The transaction is not essentially different from redemption before a tax deed is issued.

Section 76-708 provides that: ‘the tax sale certificate shall vest in the purchaser * * * the right to a complete title to the property described therein,’ subject to the right of redemption as provided by law. In neither case (under 76-708 or 76-740) is the sale of the taxed property nor the subsequent proceedings a final and irrevocable divestiture of the title of the owner, or former owner, so long as the privilege of recapture extended to such owner, or former owner, may be lawfully exercised.

As between redemption before deed is issued to the state and repurchase afterwards the result, so far as the person whose title has been extinguished is concerned, is the same. The mechanics only, are different. An examination of the definitions of the words ‘redeem’ and ‘repurchase’ found in Words and Phrases, Permanent Edition, Vols. 36 and 37, respectively, shows uniform holdings of the courts to the effect that the words are synonyms. The following are only a few illustrative definitions:

‘The word ‘redeem’ means to purchase back. Maxwell v. Foster, 67 S.C. 377, 45 S.E. 927, 932.

‘The word ‘redeem,’ as used in statutory provisions authorizing a party to redeem, means ‘repurchase.’ Robinson v. Cropsey, 2 Edw.Ch., N.Y., 138, 146.

‘The word ‘redeem,’ as used in statutory provisions authorizing a party to redeem means ‘repurchase.’ Mannington v. Hocking Val. R. Co., C.C., 183 F. 133, 145.'

“Redemption' in a literal sense, means buying back or repurchasing. Lincoln County v. Shuman, 138 Neb. 84, 292 N.W. 30, 34; Marker v. Scotts Bluff County, 137 Neb. 360, 289 N.W. 534, 537.'

And in Pace v. Bartles, 47 N.J.Eq. 170, 20 A. 352, 359, it was decided: ‘The word ‘redeem’ means ‘repurchase.’ The words are synonyms.'

In 51 Am.Jur., Taxation, Sec. 1104, discussing operation and effect of redemption, is is said:

‘The effect of payment or tender of the amount necessary to redeem, by the owner or other persons entitled to redeem land from a tax sale, when made within the time limited by the statute and in accordance with the conditions and limitations imposed by the statute upon the exercise of the right to redeem, is to defeat the estate of the purchaser at the tax sale and to leave the title and right to possession of the land where it would have been had no sale of (for) taxes ever been made.’

Among the cases cited in support of the foregoing text is Kershner v. Sganzini, 45 N.M. 195, 133 P.2d 576, 134 A.L.R. 1290.

Sec. 76-747 is also worthy of consideration. It is as follows:

‘It is hereby declared that it is the intention of this act (76-724, 76-738-76-747) to provide a method whereby persons who have lost title to property through sale of the same to the state for delinquent taxes may recover such property and the title thereto without undue hardship and whereby the state and its subdivisions may receive their proper revenue; and to the accomplishment of these intentions this act (76-724, 76-738-76-747) is to be liberally construed. (Laws 1939, ch. 203, § 11, p. 494).’ (Emphasis supplied).

Counsel for appellees plausibly suggest that since it is only the person whose title to property has been extinguished by the issuance of a tax deed to the state who has the right to repurchase or redeem such property, it is to be doubted whether the community composed of Henry Langhurst and Elorida Langhurst, his wife, could successfully assert a right to repurchase. In other words, they suggest that the right of a husband to repurchase real property owned by him before his marriage, the title to which has been extinguished by the issuance of a tax deed to the state, is not a community asset, but is an asset belonging to his personal estate. Suppose the husband had owned separate real property prior to his marriage, and afterwards the title thereto had been extinguished by the issuance of a tax deed to the state, and in the meantime the husband had met with the misfortune of becoming insane. Who would have the power or authority to assert the right to repurchase? Would it be the wife who had been designated as head of the community, or the guardian of the estate of the afflicted husband? These speculations confirm us in our conclusion that from all of the foregoing, there is no merit in appellant's Assignment of Error No. 6 that:

‘The lower court erred in concluding as a matter of law that the repurchase by Henry Langhurst of said section 12 from the State of New Mexico was pursuant to the right given by statute to said Henry Langhurst individually, and therefore, when so repurchased, said property remained the property of said Henry Langhurst.’

We are not deterred from arriving at this conclusion by the argument of appellant that Henry Langhurst, upon repurchase, acquired a new and independent title presumably with community funds, there being no evidence to show that the repurchase was made with his separate funds. If it is a fact that community funds were used to make the repurchase, the representative of the community doubtless has a right to assert a claim for reimbursement from the estate of the deceased. What we have heretofore decided makes it unnecessary to consider some of the other questions presented by appellant. One, however, remains. It appears that prior to the filing of plaintiff's complaint for a declaratory judgment concerning the status of the real property as community property, or as separate property of the deceased Langhurst, a petition for probate of the will of Henry Langhurst, deceased, had been filed in the Probate Court of McKinley County, which probate proceeding had been removed to the District Court, and at the trial this probate proceeding was consolidated with the suit for a declaratory judgment. A limited research impels us to express a doubt as to the propriety of this consolidation. But since it was acquiesced in below, and no objections to it have subsequently been made, we have concluded to register none. It appears that under the terms of the will of the deceased Langhurst, two-thirds of the real property goes to Christopher Langhurst and one-third to Robert Langhurst, brother and son, respectively, of the deceased.

Independently of the question of the status of the real property as being separate or community, questions have arisen as to the proper execution by the executor in the regular routine administration. Appellant's Assignment of Error No. 10 is:

‘The court erred in charging funeral expenses against the community estate of Henry Langhurst and ...

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8 cases
  • Velasquez v. Mascarenas
    • United States
    • New Mexico Supreme Court
    • November 16, 1962 him is nothing more nor less than redemption of the property and the title thereto which has been so extinguished.' Langhurst v. Langhurst, 49 N.M. 329, 164 P.2d 204; Sanchez v. New Mexico State Tax Commission, 51 N.M. 154, 180 P.2d 246; Chavez v. Chavez, 56 N.M. 393, 244 P.2d 781, 30 A.......
  • Marquez v. Marquez
    • United States
    • New Mexico Supreme Court
    • August 24, 1973
    ...for the amount of the community funds used to redeem the property from the District. They rely upon the case of Langhurst v. Langhurst, 49 N.M. 329, 164 P.2d 204 (1945), and upon their position that the holding in that case should be applied to the purchase of the real estate by defendant f......
  • Trujillo v. Montano, 6319
    • United States
    • New Mexico Supreme Court
    • June 24, 1958
    ...question was an extension of time within which the former owner could redeem his property from the sale for taxes. In Langhurst v. Langhurst, 49 N.M. 329, 164 P.2d 204, 205, Mr. Justice Bickley speaking for the court 'We think the exercise by the 'person whose title to property has been ext......
  • Stutzman's Estate, In re, 5686
    • United States
    • New Mexico Supreme Court
    • November 3, 1953 A study of the New Mexico decisions on community property does not reveal an exact answer. The case of Langhurst v. Langhurst, 1945, 49 N.M. 329, 164 P.2d 204, decided that funeral expenses were chargeable only against the deceased husband's one-half interest in the community estate......
  • Request a trial to view additional results

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