Pueblo de Taos v. Gusdorf

• Decision Date: 02 June 1931
• Docket Number: No. 379.,379.
• Citation: 50 F.2d 721
• Parties: PUEBLO DE TAOS v. GUSDORF et al.
• Court: U.S. Court of Appeals — Tenth Circuit

50 F.2d 721 (1931)

PUEBLO DE TAOS v. GUSDORF et al.

No. 379.

Circuit Court of Appeals, Tenth Circuit.

June 2, 1931.

R. H. Hanna and Fred E. Wilson, both of Albuquerque, N. M., for appellant.

Wm. J. Barker and Charles Fahy, both of Santa Fé, N. M., and Floyd W. Beutler, of Taos, N. M., for appellees.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

This is a suit to quiet title brought by plaintiff under the provisions of section 4 of the Pueblo Lands Act (43 Stat. 636 25 US CA § 331 note).

Defendants claimed title to various tracts of land, designated by numbers, under the limitation provisions of said section 4.

From a decree in favor of defendants, plaintiff has appealed.

The sole question presented is whether defendants showed compliance with the tax-paying requirements of said section 4.

Sub-divisions (a) and (b) of said section 4 required the payment of taxes "lawfully assessed and levied" during certain periods "to the extent required by the statutes of limitation or adverse possession of the Territory or of the State of New Mexico." The New Mexico statute referred to (section 83 — 122, N. M. Code 1929) required that the claimant shall have "continuously paid all the taxes, state, county and municipal * * * levied upon the land or interest claimed."

A number of the questions here presented were determined by this court, after full and careful consideration, in United States v. Wooten (C. C. A. 10) 40 F.(2d) 882, and we reaffirm the propositions therein laid down.

Under the provisions of chapter 22, N. M. Laws 1899, claim No. 8 was sold to Taos County for $9.74 due as delinquent taxes assessed for 1904, and certificate of sale No. 995 was issued therefor. On November 9, 1906, the former owner redeemed claim No. 8 from such sale and received redemption certificate No. 83 as evidence thereof.

The pertinent provisions of chapter 22, N. M. Laws 1899, and acts amendatory thereto are set out in note 1.¹

The question is whether a payment made to redeem land sold to the county for delinquent taxes, under the statutes set out in note 1, is a payment of taxes within the meaning of section 4 of the Pueblo Lands Act.

Had the sale been made to a third person rather than to the county, the payment, under the provisions of section 23, supra, would have been made to the county treasurer for the benefit of such third person, and neither the territory nor any of its political sub-divisions would have received any part thereof. Under such circumstances, it clearly would not have been a payment of taxes.

Section 23, supra, expressly declares that the county purchasing at tax sales shall take the same rights as an ordinary purchaser, and that the certificate of sale, when recorded, shall vest in the purchaser, his heirs or assigns a complete legal title to the land, subject to redemption within three years from the date of sale.

Section 22, supra, provides that, upon a sale to the county, "the collector shall make an entry `sold to the county' on the tax roll opposite the tax and shall be credited with the amount thereon in his settlement."

The sale of the land to the county discharged the claim for taxes. In lieu of such claim, the county took the legal title to claim No. 8 subject to the former owner's right of redemption. It had the right to sell such title evidenced by the certificate of sale at either a private sale for its face value, or at public sale to the highest bidder. The payment in question was made not to discharge a claim for taxes but to redeem claim No. 8 from the sale and to reinvest in the former owner the legal title thereto. It was not a payment of taxes.

Claim No. 19 was assessed for taxes for 1914. On July 16, 1915, such claim for delinquent taxes was sold to Tobias Graham, and certificate of sale No. 531 was issued to him. On July 17, 1915, it was redeemed by the former owner and redemption certificate No. 242 was issued as evidence thereof. This sale was made under the provisions of chapter 84, N. M. Laws 1913 (sections 5495 to 5506, inc., N. M. Code 1915). The pertinent provisions thereof are set out in note 2.²

Upon the sale of claim No. 19 to Graham, the state and its political sub-divisions received payment of their taxes and the tax liability resulting from such assessment was discharged. The payment made by the former owner to redeem from such sale was in no sense a payment of taxes to the county treasurer, but was a payment to the county treasurer for the use and benefit of Graham.

It follows that the court erred in sustaining the defendants' titles to claims Nos. 8 and 19.

Section 25, c. 22, N. M. Laws 1899, required that real estate should be described on the assessment roll "by such description as will serve to identify the same." Under the decisions of the Supreme Court of New Mexico, an assessment made under that statute, in order to be valid, must describe the land with sufficient certainty to identify it without the aid of extrinsic evidence. Ferguson v. Gusdorf, 35 N. M. ___, 290 P. 214; Security Inv. & Dev. Co. v. Gross, Kelly & Co., 33 N. M. 535, 271 P. 95; King v. Doherty, 32 N. M. 431, 258 P. 569; Manby v. Voorhees, 27 N. M. 511, 203 P. 543.

Section 2, c. 84, N. M. Laws 1913 (section 5437, N. M. Code 1915), and section 203, c. 133, N. M. Laws 1921, provided that an assessment of land should contain a description "such as would be sufficient in a deed to identify it so the title thereto would pass." In State v. Board of Trustees of Town of Las Vegas, 32 N. M. 182, 253 P. 22, it was held that a description in an assessment of land, made under the last mentioned statute, may be aided by extrinsic evidence, and is valid if it is sufficiently definite that it can be made certain by the means of such evidence.

Section 30, c. 62, N. M. Laws 1882 (section 5460, N. M. Code 1915), provided that "each tract of land shall be valued and assessed separately except when one or more adjoining tracts are returned by the same person, in which case they may be valued and assessed together."

Section 207, c. 133, N. M. Laws 1921, provided that "each tract of land shall be valued and assessed separately."

The trial court held that defendants were not required to show payments of taxes levied upon assessments which did not meet the requirements of the above statutes as to description and separate assessment. In so doing, the court followed the plain provision of section 4 of the Pueblo Lands Act which limits the tax-paying requirements to taxes "lawfully assessed and levied." United States v. Wooten, supra, p. 889.

We conclude that plaintiff is entitled to a decree as prayed for as to claims Nos. 8 and 19. In all other respects, the decree below was correct. The cause is reversed with instructions to enter a new decree in accordance with this opinion.

Each party shall pay his own costs on appeal.

1 Sec. 22, chapter 22, supra: "* * * Each lot or parcel of property offered for sale shall be struck off to the best bidder for cash; but if there should be no purchaser, in good faith, for the same on the first day, the property is offered for sale, when the property is thereafter offered for sale, and there is no purchaser in good faith bidding upon the same, the whole amount of the property assessed shall be struck off to the county as the purchaser, and the duplicate certificate delivered to the county treasurer and filed by him in his office, after having the same recorded in the office of probate clerk of said county. No charge shall be made for issuing duplicate certificate, or for filing and recording the same when the county is the purchaser. And the collector shall make an entry `sold to the county' on the tax roll opposite the tax and shall be credited with the amount thereon in his settlement."

Sec. 23, chapter 22, supra: "After receiving the amount for which any real estate shall be sold, the collector shall execute and deliver to the purchaser thereof a certificate of sale containing a description of...