Lawson v. Serna.
| Decision Date | 30 June 1944 |
| Docket Number | No. 4803.,4803. |
| Citation | 150 P.2d 122,48 N.M. 299 |
| Parties | LAWSONv.SERNA. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Otero County; Numa C. Frenger, Judge.
Suit by J. L. Lawson against Merced Serna and others to quiet title to certain real property. From a judgment in favor of the plaintiff, the named defendant alone appeals.
Judgment reversed, with directions.
In suit to quiet title to realty, where title relied upon was based on a tax deed, proof that assessment upon which plaintiff's tax deed was based was a double assessment and therefore void required dismissal of the suit, regardless of what character of title, if any, defendant possessed. 1941 Comp. § 76-723.
Shipley & Shipley, of Alamogordo, for appellant.
J. L. Lawson, of Alamogordo, for appellee.
This is a suit to quiet title to certain real property, the title relied upon being based upon a tax deed. Plaintiff-appellee prevailed in the suit and one of the defendants, Merced Serna, appeals. Appellant Serna (hereinafter referred to as defendant) challenges the findings, conclusions and judgment of the court as being without support in either facts and law. In view of our decision it is not necessary to resolve all these contentions. The findings pertinent to our conclusion, and necessary to be noticed, are not assailed by appellee.
We need to notice only two points advanced: (1) Was the assessment upon which the tax deed of plaintiff was based a double assessment and therefore void? (2) Was the interest of defendant in the property such as would, in any event, permit her to defend against plaintiff's claim and to assert the invalidity of the tax title?
Defendant, and her predecessors in title, had, since 1908, occupied and claimed ownership in the property in question under the designation of “lot No. 2 of ‘Orchard Addition’ to the town of Alamogordo”, and had, at least since 1927, rendered the property for taxation under such designation and description and regularly paid the taxes thereon either by direct payment or by having such taxes liquidated through the statutory allowance of exemption.
It is conceded that no taxes remained unpaid on the property for any year since 1927, including the year 1938, the year for which the double assessment is alleged to have been made as hereinafter shown and from which alleged double assessment flowed the tax deed upon which plaintiff relies in his suit here.
Upon the trial of the case it was found by the court upon sufficient evidence in support that there had never been any official platting or designation of such area as “Orchard Addition” to the town of Alamogordo; and upon this plaintiff relies in urging that the assessor was authorized, in his effort to get a more accurate description of the property invloved, to direct the making of an additional assessment for 1938 based upon a description by metes and bounds.
Plaintiff lays considerable emphasis upon the point that defendant, in any event, being without actual title to the property, although claiming it over the years, is in no position to question the act of the Assessor in so securing a metes and bounds survey and having a double assessment laid in 1938, even if it should be held that the subsequent and additional assessment was in fact a double assessment and should not have been made.
It is argued that neither defendant nor her predecessors in title, although occupying the land in question since 1908, ever had title or any instrument in writing upon which to base color of title since the property was always held by them under nothing more than a contract between defendant's predecessors in title and another to thereafter sell and convey upon the payment of the stipulated purchase price; and that a mere contract to thereafter convey by deed does not afford that color of title necessary to support title by adverse possession.
The paper title relied upon must “purport to convey” title, says plaintiff. Although this seems to be the rule, we need not decide whether, under the circumstances here present, defendant could not in fact rely for color of title upon this particular contract. In this connection, however, see Armijo v. Armijo, 4 N.M. 57, 13 P. 92; Solomon v. Yrisarri, 9 N.M. 480, 484, 54 P. 752; Chambers v. Bessent, 17 N.M. 487, 489, 134 P. 237. “To be available as color of title, a deed should purport to convey title to the land in controversy and apparently do so ***.” 2 C.J.S., Adverse Possession, p. 590, § 72. But certain classes of contracts for a deed have been construed by some courts as affording color of title. Id., § 74(e); 88 Am.St.Rep. 718 (Note).
In view of what is hereafter said, it does not become necessary for us to determine whether this particular contract affords defendant color of title. The second assessment of 1938 was, under the circumstances, a double assessment upon which defendant is entitled to rely in defense of plaintiff's suit to quiet title, and it becomes unimportant in this suit as to what character of title, if any, she possessed.
It is not disputed that since 1927 plaintiff has regularly paid her taxes-or has been credited with her statutory exemption therefor. The taxing authorities had always taken her rendition of the property as “lots 1-2 Orchard Addition”, or by similar designation, without an examination as to location, ownership or correctness of description, until a more careful examination of the assessment and the property itself was made by Assessor Longwell in the year 1939. He was then checking property generally for unknown ownership; and he examined the tract in question, designated as lot 2 of Orchard Addition. He discovered no such addition as “Orchard Addition”. Also, concluding, evidently, that the ownership was unknown, although he knew defendant “claimed” the property, he then determined that the property should be classified and assessed to “unknown owners”. The tax rolls had then, in due course, been turned over to the County Treasurer and the Assessor requested this officer to so assess the property for which he, the Assessor, had secured a description by metes and bounds.
[1] It may be conceded that the Assessor was, in good faith, endeavoring to get a better and more definite description of the land in question for the purpose of making an accurate assessment; but good faith is not enough. The Assessor knew that defendant at least claimed ownership, 1941 Comp. sec. 76-723 prohibits the assessment to “unknown owner” where “claimed” ownership is known, and the curative provisions thereof do not aid where the taxes are not “unpaid at the time of sale.”
It is not a question of whether defendant had any actual property right in and to the...
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