Schmitz v. New Mexico State Tax Commission, 5366

• Decision Date: 14 June 1951
• Docket Number: No. 5366,5366
• Citation: 232 P.2d 986,1951 NMSC 48,55 N.M. 320
• Parties: SCHMITZ v. NEW MEXICO STATE TAX COMMISSION et al.
• Court: New Mexico Supreme Court

Page 986

232 P.2d 986

55 N.M. 320

SCHMITZ v. NEW MEXICO STATE TAX COMMISSION et al.

No. 5366.

Supreme Court of New Mexico.

June 14, 1951.

Rueckhaus & Watkins, Albuquerque, for appellant.

C. C. McCulloh, Santa Fe, for State Tax Comm.

Sam Dazzo, Albuquerque, for intervenors.

COORS, Justice.

The Appellant-Plaintiff, Birdie Schmitz, Administratrix of the Estate of Nels A. Bengston, deceased, filed a petition for mandamus against New Mexico State Tax Commission seeking an order from the District Court requiring defendant to execute and deliver to her a deed conveying 640 acres of land in Rio Arriba County, New Mexico. She alleged she is the Administratrix of the Estate of Nels A. Bengston, deceased; that she holds letters of administration from the Probate Court of Rio Arriba County, New Mexico, issued on March 6, 1950; that the State of New Mexico holds tax deed No. 2486 C to said land owned in his lifetime by said Bengston, deceased, and that pursuant to her right under Section 76-740, New Mexico Statutes Annotated, 1941 Compilation, she filed with the Tax Commission on March 6, 1950 her application to repurchase said land accompanied by check for $683.06, being the amount of taxes, costs, etc., and also a certified copy of her letters of administration; that defendant failed and refused to deliver the deed to plaintiff.

The District Court issued an alternative writ of mandamus ordering defendant commission to execute and deliver the deed or show cause why it had not done so.

A motion was filed by Caswell Silver and C. C. Davis asking leave to intevene on the ground they claimed some right, title and interest in the real estate involved. The trial court granted them leave to intervene and such intervenors filed their answer and also a complaint in intervention. The defendant commission filed an answer. The case was heard by the trial court on the pleadings, written exhibits and statements of counsel of the parties made to the court as to the facts in the case which counsel agreed should be considered as evidence by the court without formal introduction of sworn oral testimony. Defendant commission and intervenors joined forces in opposing plaintiff and set up the same defenses and filed joint requested findings of fact and conclusions of law.

The defendants and intervenors contended that the statutes gave plaintiff no right to repurchase from the Tax Commission the property formerly belonging to Bengston, deceased, for the reason that under our law upon the death of a person intestate, real estate passed directly to his heirs and not to the administrator and that the administrator has no right, title or interest in the land nor the right to repurchase real estate sold to the State for taxes unless ordered by the District Court to take it and sell it for the benefit of creditors or to possess it for the benefit of existing heirs who were not present and able to take possession and care for it themselves, and further contended that Bengston had died in May, 1932, intestate and without heirs and therefore the title to the property vested in the State of New Mexico by escheat and that the State of New Mexico was therefore the owner of the statutory right to repurchase the land as provided in Section 76-740, New Mexico Statutes Annotated 1941.

The material facts in the case are undisputed. Plaintiff in her individual capacity on February 27, 1950 filed with the State Tax Commission an offer to purchase the 640 acres in question for the sum of $2,800.00. On March 6, 1950 plaintiff as administratrix of Nels A. Bengston filed with the State Tax Commission an application to repurchase the same land for $682.67, being the amount of delinquent taxes, interest and costs claimed against the property. On March 25, 1950 the intervenors filed their offer to purchase the land for the sum of $6,438.40. None of these offers had been accepted by defendant up to the date of trial and judgment. Nels A. Bengston had lived in Pueblo, Colorado, and some time before 1920 he had filed and began living upon a government homestead of 640 acres (the land here involved) in Rio Arriba County, New Mexico. He was granted a patent to the land in 1923 and continued to live upon it until 1927 when he became insane and was taken back to Pueblo, Colorado, and placed in the Colorado State Insane Asylum where he was confined until he died in May, 1932. Bengston, owner of the land, died intestate and without any known heirs. Attorneys for both plaintiff and intervenors made diligent search and inquiry to find or contact any heirs or to ascertain if there were any heirs surviving Bengston, all without avail. Their inquiry was made of people living in the vicinity of his homestead and of people in Colorado who knew him or of him during his lifetime and of the Insane Asylum where he spent the last years of his life. The attorneys stated to the trial court, which was considered evidence, that they were unable to find any heirs or any trace of heirs. No creditors had filed claims against the estate and if there had ever been any creditors, their claims had long been barred, Bengston having been dead for eighteen years when the present cause was filed. The plaintiff herein filed a petition in the probate court of Rio Arriba County and in such verified petition, filed eighteen years after Bengston's death, stated, he 'died leaving no will, no surviving conjugal partner, nor any known heirs'. On the 6th day of December, 1935, three and one-half years after Bengston's death, the county treasurer of Rio Arriba County sold the land to the State for taxes for the years 1931, 1932, 1933 and 1934, and thereafter, in pursuance to said tax sale, issued a tax sale certificate to the State, and on February 3rd, 1949 executed to the State and delivered to the defendant State Tax Commission a tax deed purporting to convey title to the said land to the State of New Mexico. Hence the controversy between the plaintiff and the intervenors as to the right to purchase title from the defendant.

The Court, after making many findings of fact and conclusions of law, entered judgment discharging the alternative writ of mandamus theretofore issued.

A number of findings and conclusions of the trial court were unnecessary and immaterial, but conclusion of law No. 2 was clearly erroneous for the reasons hereinafter discussed, but was not prejudicial because the final judgment rendered was correct notwithstanding the court's misconception of the law upon which the judgment should have been based. This erroneous conclusion reads as follows: 'The tax lien of taxes for 1931-1932 is sufficient to support title in the State under said tax deed. The title, vested in the State by escheat, would only vest in the State the right to repurchase, which the owner would have, had he lived.'

While plaintiff made ten assignments of error, and reduced those to five points for discussion, there are only three important controlling questions in the case and two of these are closely related.

The first question is, Did the land belonging to Bengston at the time of his death remain uninherited? That is, Did he die intestate and without heirs? The second closely related question is, If he had no heirs did the title to the property vest in the State of New Mexico immediately upon his death, or would it not vest until the State brought and concluded a formal judicial proceeding to have a competent court find he died without heirs and render a judgment declaring and ordering the title passed by escheat.

There is very little to be found upon the subject of escheat in the New Mexico State Constitution or the statutes. The only mention of escheat in the Constitution appears in Article XIII, Section 4, which provides, among other things, that the net proceeds of property that may come to the State by escheat shall be a part of the current school fund of the State...