Marquez v. Marquez

• Decision Date: 24 August 1973
• Docket Number: No. 9629,9629
• Citation: 85 N.M. 470,513 P.2d 713,1973 NMSC 84
• Parties: Ismael MARQUEZ and Carmen Marquez, his wife, Plaintiffs-Appellants, v. Crecencio MARQUEZ, also known as Crescenio Marquez, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 713

513 P.2d 713

85 N.M. 470

Ismael MARQUEZ and Carmen Marquez, his wife Plaintiffs-Appellants, v. Crecencio MARQUEZ, also known as Crescenio Marquez Defendant-Appellee.

No. 9629.

Supreme Court of New Mexico.

Aug. 24, 1973.

Ahern, Montgomery & Albert, Robert D. Montgomery, Michael L. Danoff, Albuquerque, for plaintiffs-appellants

Chavez & Cowper, Belen, for defendant-appellee.

OPINION

OMAN, Justice.

This is an appeal by plaintiffs from a judgment declaring defendant to be the owner in fee simple of a certain parcel of real estate; declaring plaintiffs to have no lien upon, interest in, or right or title to the property; ordering plaintiffs to forthwith deliver possession of the property to defendant; and ordering plaintiffs to account to defendant for the mesne profits derived from crops grown on the property between April 23, 1968 and the date of delivery of possession to defendant. We affirm.

Plaintiffs are husband and wife. Defendant is the father of plaintiff, Ismael Marquez. Upon the death of defendant's first wife, the real estate in question became the separate property of defendant, and was his separate property and estate upon his marriage to Altagracia Marquez on July 7, 1947. Subsequent to his marriage to Altagracia, the property was sold to the State of New Mexico for delinquent taxes.

After the lapse of the one year period, during which defendant had a prior right to purchase the property (§ 72--8--31, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, 1961)), the Middle Rio Grande Conservancy District, hereinafter referred to as the District, purchased the property. The trial court found that the purchase by the District was made after the period of redemption had expired, and this finding has not been attacked. The purchase by the District was accomplished some time prior to August 19, 1954, and was made pursuant to the District's authority under § 75--30--20, N.M.S.A.1953 (Repl.Vol. 11, pt. 2, 1968). On August 19, 1954, defendant purchased the property from the District with community funds belonging to him and his wife, Altagracia. Title was taken from the District by quitclaim deed naming defendant as grantee.

On April 23, 1968, defendant purportedly conveyed the property by quitclaim deed to plaintiffs as joint tenants. Defendant's wife did not join in this purported conveyance. Plaintiffs contend the property was conveyed to them as a gift from defendant.

Altagracia died July 26, 1969. Plaintiffs filed their complaint in this suit on August 11, 1971, whereby they sought to quiet title to the property in themselves. Defendant answered and counterclaimed whereby he sought to have title to the real estate quieted in himself, possession thereof delivered unto him, an accounting by plaintiffs for mesne profits, and other relief not here pertinent. As above stated, judgment was entered in favor of defendant.

Plaintiffs rely upon three separately stated points for reversal, but in the statement of proceedings in their brief in chief they admit: 'The sole issue on appeal is whether or not Altagracia's failure to join in that deed (the quitclaim deed of April 23, 1968 whereby defendant purportedly conveyed the property to plaintiffs), in the circumstances of this case, made the deed a nullity.' This is the issue to which we shall primarily address ourselves in this opinion.

The position of plaintiffs is that the purchase of the property by defendant from the District amounted to a repurchase or a redemption by him of his separate estate, which he could properly convey without the joinder therein of his wife, and that defendant, as the survivor of the community, has only a claim 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 from the District, since the District is a State agency and but 'another arm of the sovereign.'

Section 72--8--31, supra, provides:

'Right to repurchase--Persons entitled to repurchase--Restriction period on sale.--The person, or any lienholder, whose title to or interest in property has been extinguished by the issuance of a tax deed to the state shall have the prior right to repurchase such property.

'For a period of one (1) year after the date any tax deed to the state has been recorded, the state tax commission shall not convey any property acquired by such tax deed to any person other than one entitled to repurchase the property. Provided, however, that the prior right to repurchase shall continue after the expiration of one (1) year from the date the tax deed to the state has been recorded and until the property acquired by the state by virtue of such deed is sold at public action or at private sale as in this act provided.'

Section 75--30--20, supra, provides:

'Purchase of property sold for delinquent taxes.--The board (of the District) shall have the power to bid in and hold for the use and benefit of the district and with like effect as any other purchaser, any property sold for delinquent taxes or district assessments and to purchase from the county or other owner the tax sale certificate or duplicate tax sale certificate outstanding against any property within the district. At the expiration of the period of redemption under any tax sale of property within the district, the board may, at its election pay all taxes, penalties, interests and costs represented by the tax sale certificate or duplicate tax sale certificate therefor and thereupon the county treasurer shall execute and deliver a tax deed conveying said property to the district.'

It is apparent from a reading of § 72--8--31, supra, that it refers to the right to repurchase from the State through the State Tax Commission. It is equally apparent from a reading of § 75--30--20, supra, that the District has the power to acquire and hold, as any other purchaser, property sold for delinquent taxes. The District acquired an independent and paramount title to the property upon its purchase thereof from the State. Compare Alamogordo Improvement Co. v. Hennessee, 40 N.M. 162, 56 P.2d 1127 (1936). Defendant had no right to redeem or repurchase the property from the District for taxes, penalties, interest and costs as provided in § 72--8--32, N.M.S.A.1953 (Repl. Vol. 10, pt. 2, 1961). His right to redeem or repurchase the property continued only so long as he had the right to recapture or redeem it from the State pursuant to § 72--8--31, supra.

In Langhurst v. Langhurst, supra, the property there in question was redeemed by the former owner by repurchase from the State in accordance with the provisions of § 72--8--31, supra. The property had not been sold to another purchaser and the owner's right of redemption had not expired.

A married person has the same right as a single person to redeem his or her separate property which has been conveyed by tax deed to the State. If he or she uses community funds for this purpose, the community may properly assert a claim for reimbursement. Langhurst v. Langhurst, supra. In the present case, as already stated, defendant did not redeem the property, he purchased it from the District with community funds.

All property owned by a husband and wife before marriage, and that acquired by either during marriage by gift, bequest, devise or descent, with the rents, issues and profits thereof, is their respective separate property. Sections 57--3--4 and 57--3--5, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1962). All other real and personal property acquired by either, or both, during marriage, is community property. Section 57--4--1, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1962). Property acquired during marriage is presumed to be community property. Campbell v. Campbell, 62 N.M. 330, 310 P.2d 266 (1957). If community funds are used to purchase the separate property of either spouse, such property becomes community property. McDonald v. Lambert, 43 N.M. 27, 85 P.2d 78, 120 A.L.R. 250 (1938). Thus, it is apparent that upon the purchase by defendant of the property from the District with community funds, this property became community property.

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