State ex rel. Cunningham v. Romero

• Decision Date: 22 September 1916
• Docket Number: 1913.
• Parties: STATE EX REL. CUNNINGHAM ET AL. v. ROMERO, COUNTY TREASURER.
• Court: New Mexico Supreme Court

161 P. 1103

22 N.M. 325, 1916 -NMSC- 074

STATE EX REL. CUNNINGHAM ET AL. v. ROMERO, COUNTY TREASURER.

No. 1913.

Supreme Court of New Mexico

September 22, 1916

On Motion for Rehearing, December 30, 1916.

Syllabus by the Court.

Chapter 78, Laws 1915, construed, and held, that the owner of property may redeem the same from a tax sale within three years from the date of the certificate by paying the amount paid at such sale, with interest at the rate of 1 per cent per month, together with any taxes which may have been paid upon the property by the purchaser of the tax certificate with interest at the same rate.

The provision of section 1, chapter 78, Laws 1915, which reads as follows, "Such sale of said certificates or duplicate certificates, or such redemption by the owner, shall release said property from the lien of all delinquent taxes penalties, interest and costs standing against the same at the date of such sale or redemption," operates to release the property from the lien of all such taxes penalties, interest, and costs upon the sale of the certificate.

Appeal from District Court, San Miguel County; Leahy, Judge.

Action by the State, on the relation of J. M. Cunningham and another, administrators of the estate of F. H. Pierce, for mandamus to Eugenio Romero, treasurer and ex officio collector of taxes of San Miguel County. From a judgment for relators, defendant appeals. Affirmed.

Chas. W. G. Ward and C. A. Hunker, both of Las Vegas, and Thomas H. Gibson and Edwin Park, both of Denver, Colo., for appellant.

Charles A. Spiess and Herbert W. Clark, both of East Las Vegas, for appellees.

HANNA, J. (after stating the facts as above).

The only question for our determination is whether an owner of real estate which has been sold to the county for delinquent taxes for two or more years prior to April 1, 1915, may redeem the same by the payment of the amount for which the certificate of sale has been sold and assigned by the county to a third party, or whether such owner must pay the original amount for which the property was sold to the county.

It is the contention of appellant that the Glen Investment Company, the purchaser of the tax certificate in question, is entitled to receive not only the amount paid for the certificates, but also the penalties, interest, and costs which had accrued thereon, although such penalties, interest, and costs had not, in fact, been paid to the county by the purchaser of the certificates. The question is purely one of construction of our statutes, and there is no controversy over the fact that the sale of the property described in the certificates for delinquent taxes was made pursuant to the provisions of section 5498 of the Codification of 1915, which section provides:

"Each parcel of real estate offered for sale shall be struck off to the highest bidder for cash, but if such real estate cannot be sold for the full amount of the taxes, penalty and interest due thereon or if there should be no bidder for the same, the whole amount of the property on which the taxes have been levied shall be struck off to the county for such total amount, and the collector shall make an entry on the assessment book of the fact, opposite to the name of the person assessed, and shall be credited with the amount of tax thereon in his usual settlement. In no case shall such interest be released, abated, rebated or reduced, but it shall have all the force and effect of the original tax and become part thereof, and any failure on the part of the county treasurer to add such interest to the tax at the time of collection thereof shall subject him to a penalty of double the amount thereof for which he and his bondsmen shall be liable, to be recovered by suit brought in the name of the state. One half of the interest or penalty collected upon taxes shall be paid to the state treasurer for the credit of the state interest fund, and the other half shall

be credited to the county interest fund: Provided, the county shall not by the sale aforesaid acquire title to such real estate, but shall sell and assign the duplicate tax certificate, as provided in section 5500."

By section 5500 it is provided that:

"When any property shall be struck off to the county as provided in section 5498, it shall be the duty of the county treasurer to sell and assign the duplicate certificate of such sale to any person who will at any time pay the full face value thereof with accrued interest, and if the same cannot be sold at private sale before the regular sale of property for delinquent taxes in the next succeeding year, such certificate shall be sold at public auction at the time of such delinquent tax sale to the highest bidder for cash by the county treasurer then in office, but in no case shall such certificate of sale be sold for less than the full amount of the taxes and interest due after notice stating the time and place of sale, a brief description of the property, the amount due and the name of the person against whom the tax was assessed, or that it was assessed against unknown owners, if such be the case, shall have been published for four consecutive weeks, as provided in section 5495.

It shall be the duty of the treasurer, immediately after the sale of any such duplicate tax sale certificate, if the post office address of the owner or agent of the owner is known, to mail a notice to such owner or agent informing him of the sale of such duplicate certificate of taxes upon his property, and giving the name of the purchaser and the amount paid therefor, and the surplus, if any, over and above the taxes, penalty and accrued interest, and that unless he shall redeem the same within three years from the date of recording of said duplicate certificate, which, with the assignment thereof by the treasurer, must be recorded in the office of the county clerk, a deed therefor will be executed and delivered to the purchaser, or his assigns. The owner of any such real estate may, at any time prior to the sale of such duplicate certificate, redeem the same by paying to the treasurer the amount of such taxes, penalty, interest and costs."

It is to be noted from the foregoing section that it was made the duty of the treasurer after the sale of any such duplicate tax certificates to mail a notice to the owner or agent of the property, informing him of the sale of such certificate, and giving him the name of the purchaser and the amount paid therefor, and advising him that unless he shall redeem within three years from the date of recording of said duplicate certificate, a deed will be executed and delivered to the purchaser or his assigns.

By section 5502, Code 1915, subsequently repealed, it was further provided that the treasurer should give the purchaser a certificate of sale containing a description of the property sold, stating the name of person or persons to whom the same was assessed, and the amount paid therefor, and that the property was sold for taxes subject to the right of the owner to redeem the property within three years by paying the amount paid at such sale, with interest thereon at the rate of 1 per cent. per month.

This latter section of the Codification of 1915 was amended by chapter 78 of the Laws of 1915; the amending act being an entire substitution for said section 5502, and reads as follows:

"Upon payment of the amount for which any real estate is sold, the collector shall give to the purchaser a certificate of sale, containing a description of the property sold stating the name of the person or persons to whom the same was assessed or that it was assessed to unknown owners, as the case may be, the amount paid therefor, and that it was sold for taxes, with the date of sale, and that the sale is subject to the right of the owner to redeem the property within three years by paying the amount paid at such sale with interest thereon at the rate of one per cent. per month, which certificate must be recorded in the office of the county clerk in a book kept for the purpose of recording such certificates. Such former owner may at any time, within three years from the date of such

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