Straus v. Foxworth

• fullCitation: Straus v. Foxworth, 16 N.M. 442, 117 P. 831, 1911 -NMSC- 45 (N.M. 1911)
• Decision Date: 01 September 1911
• Citation: 117 P. 831,16 N.M. 442,1911 -NMSC- 045
• Parties: STRAUS v. FOXWORTH.
• Court: New Mexico Supreme Court

117 P. 831

16 N.M. 442, 1911 -NMSC- 045

STRAUS v. FOXWORTH.

Supreme Court of New Mexico

September 1, 1911

Syllabus by the Court.

A tax certificate issued under section 31, c. 22, Acts 1899 providing for the sale without a judgment of court of property for delinquent taxes for amounts less than $25 vests a title in the purchaser which can be invalidated only on the grounds that the taxes, penalties, interest, and costs had been paid before the sale, or that the property was not subject to tax, and not for irregularities in the proceedings leading up to the sale, unless they are fraudulent or amount to jurisdictional defects.

Appeal from District Court, Quay County; before Justice Wright.

Action by A. Straus against W. L. Foxworth. Judgment for defendant and plaintiff appeals. Affirmed.

Reid & Hervey (R. P. Barnes and Hawkins & Franklin, by special leave of court), for appellant.

Harry H. McElroy, Reed Holloman, C. C. Davidson, and Dougherty & Griffith, for appellee.

ABBOTT J. (after stating the facts as above).

Counsel for the appellant claim in the first place, that section 25 above quoted, should be restricted in its application to errors and irregularities in listing property for taxation, and was not meant to apply to defects in the assessment, advertisement, and sale of land for taxes. The fact that immediately before the words which specifically limit the right of attack there is a limitation of the effect of irregularities in listing does not, we think, have the effect claimed for it by the appellant. The argument for the opposite effect would be stronger. So far as listing was concerned, it was not to be expected that anything more would be said. The statement on that subject was complete. Besides, the act in question is evidently meant to contain a system of taxation practically complete in itself. The act consists of 34 sections; and while it leaves some portions of the legislation previously in existence unrepealed unless they are in conflict with chapter 22, the reason for so doing is manifest from the proviso in section 34: "All acts or parts of acts in conflict herewith, either general or special, are hereby repealed, and this act shall take effect and be in force from and after its passage: Provided, that the provisions of this act shall not affect or be applicable to taxes heretofore assessed or which are delinquent at the date of the approval hereof, except, that suit for the same may be brought and judgment thereon rendered in the manner provided by this act, but the validity of such delinquent taxes shall be determined by the law in force at the time of making the assessment therefor. The time for the payment of all taxes now delinquent is hereby extended until May 1, 1899, and when the same may be in litigation at the date of the passage of this act until such litigation shall be determined." In view, then, of the comprehensive purpose of the act, of which the language last quoted leaves no doubt, it would be a forced construction which should narrow the application of section 25 to errors in listing, leaving the much larger field of irregularities in advertising, making sale, giving certificates of sale and tax deeds uncovered.

It is claimed, too, that, even if the limitation on attack found in section 25 is not restricted to cases of error in listing yet by the words, "sold at tax sale in accordance with this act," it was meant to limit that restriction to those cases in which the provisions for advertisement and sale contained in the act should be strictly followed. We are satisfied, however, that it was meant by this provision to afford deliverance from the evil of having tax sales held invalid for irregularities which were not based on meritorious grounds, an evil which as a matter of common knowledge had assumed such proportions not only in New Mexico, but throughout the country, as seriously to interfere with the fair adjustment of the burden of taxation. As pointed out by the Supreme Court of the United States in De Treville v. Smalls, 98 U.S. 517, 25 L.Ed. 174, Blackwell in his work on Tax Titles states that "of a thousand cases of tax sales in court not twenty have been sustained." That the purpose of the act was what we have suggested is further indicated, as it seems to us beyond question, by the repetition in the act in various forms and connections of the declaration that a tax title shall be good against all but really meritorious objections. In the latter part of section 23 it is provided that the judgment shall be "conclusive except in cases where the taxes had been paid or the real estate was not liable to the tax or assessment." In section 25, after the general statement already referred to, as if to make sure there should be no escape from it, there is a provision that, if the taxes had been paid on a portion of land sold, nevertheless the sale and certificate shall vest a perfect title in the portion on which the "taxes had not been paid." In section 34 there are provisions for mitigating what might be considered the rigors of the act through leaving the validity of delinquent taxes to be determined by the law in force when the assessment was made, and by extending the time of payment of taxes then delinquent, or in litigation at the passage of the act. This measure of leniency toward defaults already made was superfluous, if no greater degree of strictness was to be exercised toward defaults of the future. Bearing in mind the familiar rule of statutory construction which gives to the legislative intention controlling force, we are satisfied that the words "in accordance with this act"--not, it should be noticed, as having perhaps some significance, in accordance with the provisions of this act--mean no more than...