N. H. Ranch Co. v. Gann.
| Decision Date | 15 July 1938 |
| Docket Number | No. 4349.,4349. |
| Citation | 42 N.M. 530,82 P.2d 632 |
| Parties | N. H. RANCH CO.v.GANN. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Catron County; Eugene D. Lujan, Judge.
Suit to quiet title by N. H. Ranch Company against W. O. Gann. Judgment for plaintiff, and defendant appeals.
Reversed and remanded with directions.
On appeal from judgment for plaintiff in suit to quiet title wherein defendant claimed under tax deed, reviewing court would assume that trial court adopted view of plaintiff expressed in conclusions of law that county treasurer failed to give notice of tax sale or to sell land for taxes, where judgment contained recital that court found the issues in favor of the plaintiff and against the defendant. Laws 1933, c. 171, § 23.
Alvan N. White and Clyde T. Bennett, both of Silver City, for appellant.
Hanna, Wilson & Brophy and James F. Warden, all of Albuquerque, for appellee.
Plaintiff sued to quiet title to lands alleged to be owned by it in Catron County. The complaint sets forth that defendant claimed title to the land by virtue of a pretended tax deed, and set forth in detail the omissions of the taxing authorities, and alleged that the said tax deed was a spurious instrument, the recording of which created a cloud upon the plaintiff's title. Some of such omissions are that the county treasurer did not publish the required notice of tax sale in a newspaper of general circulation published in Catron County or an adjoining county; did not give any notice to the then record owner of the property, T. C. Hilliard, by registered mail; did not appear in person or by deputy at the front door of the court house, or at the building where the district court is regularly held, on the 12th day of June, 1933, and offer for sale at public vendue the property described in the complaint; that he failed to sell the property and each item or parcel thereof to the highest bidder for cash and failed to continue the same from day to day for a period of five days; that he did not carry over the said property which was unsold at the close of each day and again offer the same for sale on the succeeding day; that he did not strike off and sell to the State of New Mexico on the 5th day of the claimed sale for the amount of taxes, interest, penalties and costs the property described in the complaint; that he did not himself or by deputy note the words “sold to the state” with the date sold, opposite the description of the property of plaintiff on the tax roll as required by law; that he did not endorse on the tax rolls opposite the entries of the property the fact of assignment, the date thereof, or the name of the assignee, as required by law; that he did not between sixty and ninety days after the purported sale give notice to T. C. Hilliard or anyone else by registered mail that said property had been sold for delinquent taxes; that he did not give notice to Hilliard between sixty and ninety days after the purported sale of any of the matters and things required by Sec. 15, Ch. 171, L.1933; that he failed to secure the recording of the certificate of sale; that he did not send the triplicate copy of the purported tax sale certificate to the State Tax Commission for its records.
Defendant challenged the sufficiency of the attack made in the complaint upon the tax proceedings eventuating in a tax deed by motion to strike and demurrer to the complaint, which were overruled. Defendant answered, again challenging the sufficiency of such attack. At the trial five witnesses, all being officers or former officers of Catron County were called on behalf of the plaintiff and testified in its behalf. At the close of plaintiff's case defendant moved for judgment, which motion was by the court overruled. The court made all the findings of fact requested by plaintiff and refused most of the findings requested by defendant. Judgment was entered cancelling the tax deed, adjudicating that defendant had no interest in the lands in question and that plaintiff's title to the lands be quieted.
Defendant assigns twenty-four errors, which he presents under eight points for reversal. Appellee thinks they may be argued under three points. As some of the plaintiff's contentions made in the trial court have been abandoned either there or here, we find it convenient to consider the contentions of plaintiff as they are here presented, upon which it must rely to support the judgment in its favor. They are: First, that there was an entire omission of the taxing authorities to give notice of the sale of the property; second, that there was an entire omission of the taxing authorities to sell the property; third, that the taxing authorities have no power or authority under the facts in this case to sell the property because of the provisions of Ch. 133, L.1935, known as the Moratorium Act; fourth, that defendant took no exceptions to findings of fact by the court of an entire omission on the part of the taxing authorities to give notice of the sale and to sell the property, and therefore such findings cannot be reviewed in order to determine whether they are supported by substantial evidence.
[1] As to appellee's third point of attack involving the Moratorium statute, it is sufficient to say that no such question was presented in the pleadings or on the trial. No findings of fact or conclusions of law were made or requested which would support plaintiff's contention now said to be made for the first time that at the date of the assignment of the tax sale certificate to defendant the county treasurer had no right to make such an assignment because of the moratorium provisions of Ch. 133, L.1935, and the facts. The plaintiff is not in a position to here bring forth grounds to support the judgment which were not urged in the trial court and which defendant had no opportunity to resist.
[2] Ch. 171, L.1933, was in force at the time of the tax sale involved herein and governing the validity of the sale.
The plaintiff is therefore confronted with the provisions of Sec. 23 of that Act, which contains what are generally described as “curative provisions.” A portion of that section is as follows: “In all controversies and suits involving title to real property, claimed and held under and by virtue of a tax deed executed substantially as aforesaid by the Treasurer, the party claiming adverse title to that conveyed by such deed shall be required to prove, in order to defeat the said title, either that the said real property was not subject to taxation for the year or years named in the deed, or that the taxes had been paid before sale, or that the property had been redeemed from the sale according to the provisions of this Act, and that such redemption was made or had for the use and benefit of the persons having the right of redemption, under the laws of this State; or that there had been an entire omission to list or assess the property, or to levy taxes, or give notice of sale, or sell the property. ***”
Similar provisions have been in our statutes governing tax proceedings for many years; notably Sec. 25, Ch. 22, L. 1899, providing that no sale or tax title had in accordance with the Act should be invalidated except upon the ground that the taxes were paid before sale or that the property was not subject to taxation. In Maxwell v. Page, 23 N.M. 356, 168 P. 492, 5 A.L.R. 155, it was said that these provisions “are to be given effect according to their terms, and are held to control other provisions of the act which are merely directory.”
This doctrine has not been impaired by later decisions. Similar provisions were enacted into Sec. 435, Ch. 133, L.1921. In Witt v. Evans, 36 N.M. 365, 16 P.2d 60, we said (page 61) that the provision of that section “renders tax sales and tax titles impervious to attack, except upon the grounds that the land was not subject to taxation, or that the taxes had been paid,” and rephrased the language of the holding in Maxwell v. Page, supra, heretofore quoted, into a plain and forceful statement now frequently employed that this provision “means just what it says.” Those who desire to pursue the subject of the meaning of these curative provisions will find discussions in Cavender v. Phillips, 41 N.M. 235, 67 P.2d 250; Knollenberg v. State Bank, 40 N.M. 284, 58 P.2d 1195; Alamogordo Imp. Co. v. Hennessee, 40 N. M. 162, 56 P.2d 1127; Lawson v. Hedges, 37 N.M. 499, 24 P.2d 742; Witt v. Evans, 36 N.M. 365, 16 P.2d 60; Eaves v. Lowe, 35 N.M. 610, 5 P.2d 525; Knollenberg v. State Bank, 35 N.M. 427, 299 P. 1077; Moore v. National Bank of N.M., 35 N.M. 300, 295 P. 424; Baker v. Johnson, 35 N.M. 293, 295 P. 421; Williams v. Van Pelt, 35 N.M. 286, 295 P. 418.
The legislature by Sec. 23, Ch. 171, L. 1933, added to the grounds of attack previously existing the following which are pertinent to our consideration here: “That there had been an entire omission to * * give notice of sale, or sell the property.”
[3][4][5] We must give effect to each word of the statute. When the legislature of 1933 added these grounds of attack upon tax proceedings to those enumerated in previous statutes they were familiar with the holdings of this court that “defects or irregularities in the notice of sale were not jurisdictional, and that the restriction of defenses to tax sales to the fact that the taxes had been paid, or the property was not subject to taxation, was a valid exercise of legislative power”; and that “a premature sale was an irregularity which was not available to the owner in view of the restricted defenses reserved in the statute.” See Manby v. Voorhees, 27 N.M. 511, 203 P. 543, 548. It may be assumed also, though we express no opinion, that a total failure to give notice of sale, and a total failure to sell were theretofore considered as jurisdictional. There had been obiter expressions to that effect. When Sec. 23 of Ch. 171, L.1933 was drafted, the language selected...
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