Straus v. Foxworth
| Decision Date | 17 November 1913 |
| Docket Number | No. 191,191 |
| Parties | A. STRAUS, Appt., v. W. L. FOXWORTH |
| Court | U.S. Supreme Court |
Messrs. William C. Reid and James M. Hervey for appellant.
[Argument of Counsel from pages 163-167 intentionally omitted] Messrs. Harry H. McElrcy and Harry M. Dougherty for appellee.
This was a suit to quiet the title to three tracts of land in Quay county, in the territory of New Mexico. In the court of first instance a demurrer to the complaint was sustained, and the plaintiff declining to amend, a decree of dismissal was entered, which subsequently was affirmed by the supreme court of the territory. 16 N. M. 442, ——L.R.A.(N.S.) ——, 117 Pac. 831. An appeal from the decree of affirmance brings the case here, under the act of March 3, 1885, 23 Stat. at L. 443, chap. 355, U. S. Comp. Stat. 1901, p. 572.
The complaint purported to state four causes of action. In the first, embracing all the tracts, it was alleged that the plaintiff was the owner in fee simple, and that the defendant was making some adverse claim, not described. In the others, each embracing a single tract, the plaintiff's ownership was reiterated, and it was alleged that the defendant was claiming title under tax deeds issued in consummation of tax sales which were characterized as void for designated reasons. But, notwithstanding its form, the complaint, as the record discloses, was treated in both of the territorial courts, with the acquiescence of the parties, as intended to challenge the validity of the tax deeds only upon the grounds designated in the last three causes of action; that is, as if the general charge in the first cause of action was intended to be restrained and limited by the more specific charges in the others. We therefore treat the complaint in the same way.
It was not alleged that the lands were not subject to taxation, or that the taxes on account of which the sales were had were in any wise invalid, or that the taxes or any part of them had been paid or tendered, or that they had not been delinquent for such a period as justified their enforcement by a sale of the lands, or that the sales were in any wise tainted with fraud, or that there had been any attempt to redeem the lands, or any of them, within the three years allowed therefor, or that that period had not elapsed after the sales and before the deeds were issued. On the contrary, the sole grounds on which the complaint assailed the tax title were (a) that the sales were 'not sufficiently advertised;' (b) that proof of publication of the notice of sale was not transmitted by the printer to the county collector 'immediately after the last publication;' (c) that the collector did not cause to be made an affidavit of the public posting of the notice of sale, and did not cause proof of publication or of posting to be deposited with the probate clerk; (d) that the probate clerk did not 'carefully preserve' any such proofs; and (e) that the amount of the delinquency sought to be satisfied by the sales was in one instance 16 cents, and in another 24 cents, more than the taxes levied on the particular tract.
Plainly, the allegation that the sales were 'not sufficiently advertised' was purely a conclusion of law, and must be disregarded. No facts being set forth to sustain it, the statement of the conclusion was merely an empty assertion, and, under the rule that a demurrer admits only facts well pleaded, the conclusion was not admitted.
The charge that the delinquency sought to be satisfied by the sales was in excess of the taxes levied must be read in connection with the fact, otherwise appearing in the complaint, that the taxes were delinquent, and in connection with the statutory provisions augmenting the delinquency by designated penalties and costs. When this is done it is quite evident that the amount sought to be collected was not excessive.
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