McMillan v. Meharg, 5375

• Decision Date: 07 November 1951
• Docket Number: No. 5375,5375
• Citation: 1951 NMSC 77,237 P.2d 359,55 N.M. 556
• Parties: McMILLAN v. MEHARG et al.
• Court: New Mexico Supreme Court

Page 359

237 P.2d 359

55 N.M. 556

McMILLAN v. MEHARG et al.

No. 5375.

Supreme Court of New Mexico.

Nov. 7, 1951.

H. A. Kiker, Charles C. Spann, Santa Fe, Charles M. Tansey, Jr., Farmington, R. M. Eakes, Durango, Colo., for appellant.

Dudley Cornell, Hannett & Hannett and W. S. Lindamood, all of Albuquerque, for appellees.

LUJAN, Chief Justice.

This is an action to quiet title to certain real estate situated in Rio Arriba County. The plaintuff-appellant here, claims his title by virtue of a patent, while the defendants, E. W. Meharg and Klossie N. Meharg, his wife, appellees here, base their title on a tax sale and deed. The defendant Magnolia Petroleum Company, a corporation, bases its claim upon an oil and gas lease assigned to it by Dudley Cornell and Mary Lee Cornell, his wife, who have disclaimed any interest in the land and are therefore not parties to the suit. The cause was tried to the court without a jury and it found for the defendants. This appeal is from the judgment. The parties will be referred to as they appeared in the lower court.

The court made the following findings of fact:

'2. That the plaintiff, Willie M. McMillan, did not pay taxes on the property involved in this litigation for the years 1936 to 1946 inclusive, nor has he redeemed the same.

'3. That the real estate involved in this litigation was sold by the county of Rio Arriba to the State of New Mexico for delinquent taxes for the years of 1937 and 1938.

'12. That the sale for taxes involved in these proceedings was held on the 20th of January, 1942, and plaintiff's action was filed in this cause on the 18th day of March, 1949.'

From the following findings of fact the court concluded as a matter of law:

'4. That said tax deed under and pursuant to the provisions of Section 76-726, New Mexico Statutes, Annotated, 1941, is not subject to attack except on the ground that said property was not subject to taxation for the years named in the deed or that the taxes had been paid before sale or that the property had been redeemed.

'8. That the certificate of posting the notice and proof of publication filed in the County Clerk's office and the issuance of the tax sale certificates are conclusive evidence of holding the sale and not subject to collateral attack.'

The land in question was listed for assessment during the years 1936, 1937 and 1938. Taxes were levied thereon, and remained unpaid, and the land was duly advertised for sale as required by law. On January 20, 1946, the county treasurer issued Tax Sale Certificate No. 2265 to the State of New Mexico, which bore the following recital: '* * * do hereby certify that the following described real estate * * * was on the 20th day of January, A. D. 1942, duly sold by me * * * to the State of New Mexico, * * *'.

On Juyly 23, 1946, the county treasurer issued Tax Deed No. 2265-C to the State of New Mexico, which recited that: 'This deed is issued pursuant to the sale of the above described property for taxes * * * held on the 20th day of January, 1942, and Tax Sale Certificate No. 2265-C, theretofore issued and dated the 20th day of January, 1946.'

Thereafter the State Tax Commission conveyed this property by deed to the Mehargs. This much is shown by the record evidence introduced at the trial.

It is plaintiff's contention that there never was a valid sale of the property in question by the county treasurer for delinquent taxes and therefore the tax deed issued to the state is void.

The plaintiff attacks certain findings of fact and conclusions of law as being contrary to the evidence in the case, asserting that they are not sustained by the record. Suffice it to say that we have carefully examined the record and find that they are sustained by substantial evidence and that the court did not err in its conclusions of law. Under our well-established rule they will not be disturbed.

This case is controlled by our decision in Maxwell v. Page, 23 N.M. 356, 168 P. 492, 495, 5 A.L.R. 155, wherein a fine and extensive discussion of the law on this subject is to be found. We said: 'The essentials of taxation are the existence of the subject-matter which is to be subjected to taxation and its liability to the imposition of the tax, the assessing of the property for taxation, and the levying of the tax thereon. If, upon all of these subjects, the taxpayer has had notice and opportunity to be heard, he has had due process of law. It is not an essential in taxation proceedings that the state should proceed to enforce the collection of the tax in any particular way, or at any particular time. Therefore it is within the legislative discretion to give directions to the taxing officers to proceed to a sale in a certain way and at a certain time each year for the purpose of collecting the taxes due from the taxpayers. But the Legislature might well have provided that another and entirely different procedure should be resorted to for the purpose of the collection of the tax. These provisions are enacted in the interest of the state for the purpose of enabling it to promptly collect its public revenue. The manner of collecting the tax after it has, with due notice to the taxpayer, been fixed upon his property is a...