Patten v. Corbin

• Decision Date: 07 September 1938
• Docket Number: No. 4357.,4357.
• Citation: 42 N.M. 561,82 P.2d 789
• Parties: PATTENv.CORBIN et al.
• Court: New Mexico Supreme Court

42 N.M. 561

82 P.2d 789

PATTEN

v.CORBIN et al.

No. 4357.

Supreme Court of New Mexico.

Sept. 7, 1938.

Appeal from District Court, Grant County; Eugene D. Lujan, Judge.

Suit to quiet title by Earle S. Patten against James Corbin and another. Judgment for plaintiff, and defendant Silver City appeals.

Affirmed.

Taxes are not “liens on realty” unless expressly created or provided for by statute, or by implication so plain as to be equivalent to positive language.

Joseph F. Woodbury, of Silver City, for appellant.

C. C. Royall and Hubert O. Robertson, both of Silver City, for appellee.

BRICE, Justice.

The question is whether a purchaser of property at a sale thereof for state, county and district taxes, takes title free from claims for taxes previously assessed and levied, by a town organized under a special charter.

The appellee sued appellant Corbin as record owner, and the town of Silver City as one claiming a lien, to quiet title to certain tracts of land situated within the corporate limits of the town of Silver City, a municipal corporation organized under a special charter of comprehensive powers, granted by the legislature in 1878. From a judgment for plaintiff, defendant Silver City alone appealed.

Among the powers granted are the following: “Section 1. The council shall have power by ordinance to levy and collect taxes, and they may authorise the collector of said town to seize and sell the personal property of a person liable for taxes, in the same manner and under the same conditions and restrictions as personal property is now, or may be required to be seized and sold under executions issued on judgments at law, the council shall also have power by ordinance to provide for assessing and taxing real estate in said town and for selling the same for taxes.”

By another section of the charter provision is made for redeeming the property; and for issuing tax deeds conveying unredeemed property “which shall vest in the grantee, his, her or their heirs and assigns, the title to the real estate therein described, ***.” Authority is given the town council to levy and collect a tax not to exceed one-half of one percent in any one year, upon all taxable property within the limits of the town; also to make all ordinances “necessary or proper for carrying into execution” the numerous powers specified in the act.

The town council, by ordinance, established a complete system of local law for assessing, levying and collecting taxes on property within its corporate limits; one section of which is in part: “Sec. 20. Every tax levied according to the provision of this ordinance shall have the force and effect of an execution against the person and property assessed and taxes upon real estate are hereby made a lien thereon from the date of the levy thereof * *.”

Taxes were assessed and levied by the town council for the years of 1929 to 1936 inclusive, on the property in question, and have not been paid; the amount of which including penalties and interest, is $1960.57. During the same years there was assessed and levied against this property, state, county and school district taxes aggregating $1537.27, of which amount $835.36 were taxes levied for the year of 1930. These taxes were not paid; and pursuant to Sec. 141-705, Sts.1929, a certificate of tax lien was duly and legally issued against the property taxed. Thereafter, this lien was foreclosed by proceeding in the district court of Grant County, and the property sold to the County Treasurer of Grant County, Trustee; the sale confirmed by the court, and a tax deed was issued to the county treasurer on July 15, 1933, all as provided by law.

After the period of redemption had expired a proceeding was had in the district court of Grant County for the sale of this land, as provided by Sec. 141-714, Sts.1929, in which it was ordered sold. At a sale held as ordered, the appellee became the purchaser, and thereupon a deed was duly issued to him.

It is conceded by the appellants that if the town of Silver City has no lien, by virtue of any statute or its ordinance providing therefor, to secure its taxes on real estate, then the case should be affirmed; as otherwise a complete title in fee simple, passed to appellee.

[1] Liens to secure taxes did not exist at common law (Knowles v. Temple, 49 Wash. 595, 96 P. 1), and if no provision is made in the charter of Silver City, or by subsequent legislation, authorizing this town to create or provide by ordinance for liens (Quimby v. Wood, 19 R.I. 571, 35 A. 149; O'Connell v. Sanford, 256 Ill. 62, 99 N.E. 885), and if no statute has created such lien (Frankel v. Blank, 205 Iowa 1, 213 N.W. 597; 3 Cooley on Taxation [4th Ed.] Sec. 1230; 6 McQuillen on Municipal Corporations, Sec. 2563) no tax lien exists against the property to secure the taxes of Silver City.

[2] Taxes are not liens on real estate unless expressly created or provided for by statute, State v. O'Neil, 55 N.J.L. 58, 25 A. 273; Jaffray v. Anderson, 66 Iowa 718, 24 N.W. 527; Phelan v. Smith, 22 Wash. 397, 61 P. 31; Case Threshing Mach. Co. v. Bentson, 57 S.D. 244, 231 N.W. 948; Thompson v. Henderson, 155 Md. 665, 142 A. 525, 58 A.L.R. 1213; Archibald v. Maurath, 92 N.J.Eq. 357, 113 A. 6; In re Hazeltine's Estate, 177 A. 108, 13 N.J.Misc. 152; McComb v. Robelen et al., 13 Del.Ch. 157, 116 A. 745; Tompkins v. Little Rock & Ft. S. Ry. et als., C.C., 18 F. 344; Hoge v. Garcia et al., Tex.Civ.App., 296 S.W. 982; Board of Commissioners v. Whitt, 74 Colo. 129, 219 P. 217; State v. Syst, 138 S.C. 162, 136 S.E. 392; Andrew v. Munn, 205 Iowa 723, 218 N.W. 526; Krug v. Hopkins, 132 Neb. 768, 273 N.W. 221, 110 A.L. R. 1071; or by implication so plain as to be equivalent to positive language. 3 Cooley on Taxation (4th Ed.) Sec. 1231.

There is no express authority granted to Silver City in its charter, or otherwise, whereby it was authorized by ordinance to provide for, or create, such liens; nor is there a statute expressly creating, or authorizing them. If the authority existed it is implied from the powers granted.

No doubt the legislature could have conferred upon the town all powers it possessed for the imposition and collection of taxes to support the municipality, but it did not do so. It delegated the power to provide by ordinance “for assessing and taxing real estate in said town and for selling the same for taxes.” If real estate could not be sold for taxes except by creating and foreclosing a tax lien, the implication would be so plain as that it would be equivalent to positive language. Appellant cites 3 Cooley on Taxation, Sec. 1230, as follows: “To authorize a sale of lands for taxes, a lien must exist, either created in terms by the statute itself, or established by some official proceedings under the statute.”

The lien referred to as being “created in terms by the statute itself” has reference to the character of lien now being considered. A lien “established by some official proceedings under the statute” has reference to official proceedings authorized by statute to effect the creation of liens; or, perhaps, liens in the nature of execution liens arising from the seizure of land by the process or statutory power under which it is sold; ordinarily the warrant issued to the officer making the sale.

“The various proceedings which usually are required to precede a sale of the lands have been successively mentioned. Whether, when these have been taken, the officer will require any special warrant or process as his authority for proceeding to a sale, must depend upon whether something of that nature is provided for by law. In some of the states a list of delinquent lands is made out and properly certified by the state auditor, or some other designated officer of the state, to whom the returns of delinquent taxes have been made, and this list is transmitted to the county or township official who by law is intrusted with...