State v. Thomson
| Decision Date | 20 January 1969 |
| Docket Number | No. 8564,8564 |
| Parties | The STATE of New Mexico, Plaintiff-Appellee, v. George H. THOMSON and Ada Thomson, Defendants-Appellants. |
| Court | New Mexico Supreme Court |
The defendants appeal from the trial court's decree quieting title in the State. Although the case was initially instituted by the Capitol Building Improvement Commission, the State itself has been substituted as the proper party, appellee.
The trial was upon stipulated facts, and, inasmuch as the appellants (whom we will hereafter refer to as 'Thomson') make divergent attacks upon the findings made by the court, we will summarize the stipulated facts insofar as they are necessary for decision, rather than refer to the findings themselves.
The New Mexico Penitentiary was established and its Board of Managers created in 1884. In 1893, the Board, by statute, was given the power of eminent domain (ch. 68, § 1, Sess.L.1893). In about 1900, the Board having acquired certain lands to the south of the penitentiary itself, both east and west of the tract involved in this litigation, entered upon and took possession of this particular property and commenced livestock pursuits thereon. The tract was within the area covered by patent from the United States to the City of Santa Fe, dated February 16, 1901. At that time, the owner of the property was unascertained or unlocatable, and no effort was made to purchase the land. The Board continued its physical possession of the tract until 1956 or 1957, having constructed improvements from time to time, consisting of a dairy barn, cattle and pig sheds and corrals, dog houses and runs, a slaughter house, a lumber shed, tool sheds, and fences. The penitentiary has now been moved to another site, and, since 1959, the property in question has been vacant. The records of Santa Fe County do not disclose a conveyance or lease of the property to the Board of Penitentiary Commissioners and there has never been any written license or permission to use the tract. The record title to the tract, in 1900, stood in the name of Rena H. Spiegelberg, or R. H. Spiegelberg, who at that time was a resident either of Santa Fe or New York City. There is no record of the assessment of ad valorem taxes prior to the year 1931, but, insofar as the taxes for 1931 through 1933, the records do show that they were paid by issuance of a tax deed, by which the tract was sold to the State for unpaid taxes. This deed was issued in 1937. In 1952, Spiegelberg conveyed the property by quitclaim deed to the defendant Thomson, and thereafter Thomson made application to repurchase the tract from the Tax Commission and received a deed therefor upon the showing that they had paid $52.52 taxes for the years 1943--1952. There were never any condemnation proceedings filed, nor was there ever any attempt by Spiegelberg to eject the State from the property, nor any effort to obtain compensation for its use. Thomson has never been in possession of the property.
The trial court concluded that the Board of Penitentiary Commissioners had the right to acquire fee simple title in 1900 by condemnation proceedings and that there occurred a de facto condemnation which extinguished the Spiegelberg title; that the Spiegelberg quitclaim deed conveyed no title; and that the tax sale in 1952 and the deed to Thomson had no effect on the State's title to the property. Alternatively, the court concluded that, after the issuance of the tax deed to the State in 1937, the State had absolute fee simple title, which was transferred to the penitentiary by act of the legislature in 1939. The trial court also made other conclusions that certain tax statutes allowing the right to repurchase were unconstitutional, insofar as this proceeding was concerned; however, we need not consider this phase of the case as our decision is upon another basis.
We fully appreciate the trial judge's dilemma which resulted in giving alternative bases for his decision. It must have occurred to him, as it is so apparent to us, that there were other obvious reasons why the State's title could be quieted which were neither pleaded nor argued. In such a situation, it is somewhat difficult to resist the temptation to decide the case on an apparent and obvious theory rather than on the basis argued. However, rather than go outside the briefs and the pleadings themselves, we will determine the matter on the arguments here present, even though to do so is both circuitous and lengthy.
The judgment of the trial court must be affirmed upon the alternative conclusions made by the court. The fee simple title received by the State under the 1937 tax deed was transferred to the penitentiary by virtue of the provisions of ch. 55, Sess.L.1939, and the claimed right to repurchase by the former owner never came into existence. Ch. 27, L.1934 (Special Session), granted a right of redemption by which the former owner could reobtain property sold for non-payment of taxes provided the privilege was exercised within a two-year period. It is obvious that any right of redemption was not exercised. The issue relates to what benefits, if any, were granted to Spiegelberg by reason of the passage of ch. 203, Sess.L.1939, which gave to former owners a right to repurchase as distinguished from redemption. This right of repurchase was without time limitation. Thus, if there were no other statute affecting the title to the property with which we are here concerned, it would seem that Thomson's repurchase in 1952 was valid. However, at the same session of the legislature as the repurchase statute was adopted, there was also enacted ch. 55, Sess.L.1939, which concerned the penitentiary, its powers and authority. Both of these acts took effect ninety days following the adjournment of the legislature, although ch. 55 was approved at an earlier date, thereby explaining the circumstance of its having a lower chapter number.
Sections 2 and 4 of ch. 55, Sess.L.1939, which now appear as §§ 42--1--2 and 42--1--4, N.M.S.A.1953, read as follows:
Although any conflict between ch. 55 and ch. 203 is not at first apparent, in reality there is a conflict as to the applicability of the two statutes. Relative to the property with which we are here concerned, the penitentiary ownership and the right to repurchase are irreconcilable. We need not determine which of the two acts took effect first, but because the penitentiary statute is a special act whereas the tax statute is general, the rule is that the special statute prevails in any area of conflict. Lopez v. Barreras, 77 N.M. 52, 419 P.2d 251 (1966), Martinez v. Cox, 75 N.M. 417, 405 P.2d 659 (1965); State ex rel. Public Employees Retirement Board v. Mechem, 58 N.M. 495, 273 P.2d 361 (1954); and Varney v. City of Albuquerque, 40 N.M. 90, 55 P.2d 40, 106 A.L.R. 222 (1936). The special statute (ch. 55) was applicable to penitentiary property; and if the property with which we are here concerned was, by the provisions of that act, transferred to the penitentiary, then the right of repurchase created by ch. 203 either never came into existence or was lost long prior to the quitclaim deed from Spiegelberg to Thomson.
We also note that the sale for delinquent taxes in 1937 was controlled by the law in effect at that time, De Baca v. Perea, 52 N.M. 418, 200 P.2d 715 (1948); see, also, Kreigh v. State Bank of Alamogordo, 37 N.M. 360, ...
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