Pace v. Wight
| Decision Date | 28 May 1918 |
| Docket Number | 2200. |
| Citation | 181 P. 430,25 N.M. 276,1918 -NMSC- 081 |
| Parties | PACE v. WIGHT. |
| Court | New Mexico Supreme Court |
On Rehearing, May 8, 1919.
Second Motion for Rehearing Denied June 7, 1919.
Syllabus by the Court.
The curative provision of section 25, c. 22, Laws 1899, relative to tax sales, does not apply to jurisdictional defects.
The fact that property was in fact sold for delinquent taxes is jurisdictional; for, if no sale in fact occurred, the bases for the subsequent proceedings would not exist.
The proceedings on which tax sales depend are to be proved by the records or by the originals from which the records should be made up. The fact that real estate was sold for delinquent taxes must necessarily be established by the record, and cannot be proved by the parol evidence of the county treasurer who made the sale.
Section 23, c. 22, Laws 1899, requires the collector to keep a book of sales containing the date of sale, description of the property sold, name of the purchaser, and amount for which sold. Section 22 of the same act provides that, where property is struck off to the county, the collector shall make an entry, "Sold to the county," on the tax roll opposite the tax. It is the duty of the county treasurer making the sale to record the facts in the official record and such entry cannot be made by the successor in office of the county treasurer who made the sale, such successor having no personal knowledge of the fact recorded, and there being no memorandum from which to make the same.
It is essential to the official character of official registers that the entries in them be made promptly, or at least without such long delay as to impair their credibility, and that they be made by the person whose duty it was to make them and in the mode required by law, if any has been prescribed.
On Rehearing.
The Legislature may pass a retroactive law operating on property belonging to the state, and such law will not be unconstitutional so long as private rights are not infringed.
Where a tax sale certificate is held by a private individual, the purchaser has a vested right to a deed at the time specified in the law under which the purchase was made, and the Legislature cannot subsequently extend the period of redemption, as such extension would be an impairment of the obligation of the contract. But this rule is held not to apply where the state itself is the purchaser at the tax sale, as the extension of the time in that case is not a violation of contract rights, but an act of grace.
Chapter 22, Laws 1899, which provide that the owner of land might redeem from a tax sale at any time within three years from the date of sale, was specifically repealed by chapter 84, Laws 1913. Under the later act it was provided that the owner might redeem at any time within three years from the date of recording the certificate of sale. Held, that the later act applied to certificates of sale held by the county acquired under the former law, and that the owner was entitled to redeem at any time within three years from the recording of such certificate of sale.
Appeal from District Court, Union County; Leib, Judge.
O. P Easterwood, of Clayton, for appellant.
L. H Larwill, of Denver, Colo., for appellee.
This suit was instituted in the court below by appellant to quiet her title in and to certain real estate situated in Union county. Appellee answered, setting up the fact that he was the owner of the land by deed from one Lenora Sullivan; that appellant claimed title under a tax deed which was alleged to be invalid on various grounds, the principal one being that the tax certificate upon which the deed was based was not made by the collector in office at the time said sale was held, or by any of his deputies. In other words, the validity of the deed was attacked on the ground that it was based upon a void certificate of sale. Another defense set up was, that under chapter 84, Laws 1913, the owner had the right to redeem the land at any time within three years from the date the certificate of sale was recorded, and that proper tender had been made within such time.
To the answer appellant demurred, and, her demurrer being overruled, she filed a reply.
The facts may be briefly stated as follows:
The land in question was listed for assessment in the year 1909. Taxes were levied thereon, and remained unpaid, and the land was advertised for sale. This much is shown by the record evidence introduced by the plaintiff at the trial.
Appellant then introduced R. Q. Palmer as her witness, who testified that he was county treasurer of Union county from 1909 to January, 1912. He also testified that the land was advertised for sale for delinquent taxes together with other real estate; that it was all offered for sale on the 15th day of January, 1911; that there were no bidders for the land in question; and that he thought he thereafter struck it off to Union county. He made no record whatever of the transaction. In January, 1912, Nestor C. De Baca became county treasurer, and on March 4, 1914, De Baca or one of his deputies marked on the roll opposite this land the words, "Sold to the County," and at the same time a record was made in the treasurer's record of delinquent tax sales showing a sale of the land to the county on January 15, 1911. At the same time he made a certificate of sale in which he recited that he, Nestor C. De Baca, did, on January 15, 1911, sell the land in question to the county of Union. The certificate was signed by him, and was indorsed "March 14, 1913, as for January 15, 1911." This certificate was not recorded until September 17, 1915. The court refused to find that a sale of the land for taxes to the county was made, and entered judgment for the appellee.
But two questions will be considered here, one being decisive of the case, and the other being determined because fairly presented and of great public interest. The first question is as to whether or not the evidence established the fact that a sale of the land in question for delinquent taxes actually occurred. If no sale was in fact made, title did not pass to the county, and the attempted issuance of the certificate of sale and its subsequent assignment to Gow, through whom appellant obtained title, would be a nullity. The taxes were levied and the sale was made, if there was a sale under the provisions of chapter 22, Laws 1899. Under section 25 of that chapter it is provided:
"And no bill of review or other action attacking the title to any property sold at tax sale in accordance with this act shall be entertained by any court, nor shall such sale or title be invalidated by any proceedings except upon the ground that the taxes, penalties, interest, and costs had been paid before the sale, or that the property was not subject to taxation."
The effect of this curative provision has been before this court in several cases. It was first considered in the case of Straus v. Foxworth, 16 N.M. 442, 117 P. 831. It was there held that the sale vests a title in the purchaser which can be invalidated only on the ground that the taxes, penalties, interest, and costs have been paid before the sale, or that the property was not subject to taxation, and that it could not be invalidated for irregularities in the proceedings leading up to the sale unless they were fraudulent or amounted to jurisdictional defects. The rule in this case was followed in the later cases of Maxwell v. Page, 23 N.M. 356, 168 P. 492; Hiltscher v. Jones, 23 N.M. 674, 170 P. 884; Knight v. Fairless, 23 N.M. 479, 169 P. 312. In all of these cases it is conceded that jurisdictional defects are not cured by the curative provisions of the statute. In other words, it is essential that the property should have been listed for taxation, and that the tax should have been laid.
The fact that the property was in fact sold for delinquent taxes is likewise jurisdictional; for, if no sale in fact occurred, the basis for subsequent proceedings would not exist. In Black on Tax Titles, § 452, the author sets out the indispensable requirements essential to constitute a valid exercise of the taxing power, without which no tax sale could be validly made, which is as follows:
The fact that real estate was sold for delinquent taxes must necessarily be established by the record, and cannot be proved by the parol evidence of the county treasurer who made the sale. Section 23, c. 22, Laws 1899, provides:
"The collector shall keep a book of sale containing the date of sale, description of the property sold, name of purchaser and amount for which sold."'
Section 22 of the same chapter provides that, when there are no bidders for real estate offered for sale, it shall be struck off to the county, and that the collector shall make an entry, "Sold to the county," on the tax roll opposite the tax. The book of sales required by section 23 is intended to provide an official record of the sale and to give information to the public and to the party whose property has been sold of such fact. It is the register wherein the collector records the fact known to him and done by him, or under his direction, that he has sold the real estate therein described to the county or to the individual purchaser who may have bought at the sale; it is designed to afford evidence...
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