Territory of New Mexico v. Delinquent Tax List of Bernalillo County for the Year 1901
| Decision Date | 02 September 1903 |
| Citation | 73 P. 621,12 N.M. 62,1903 -NMSC- 015 |
| Parties | TERRITORY OF NEW MEXICO v. DELINQUENT TAX LIST OF BERNALILLO COUNTY FOR THE YEAR 1901. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
1. Lands embraced in a perfect Spanish-Mexican land grant are subject to taxation in this territory, notwithstanding the facts that the grant has been submitted for confirmation by the court of private land claims, and patent has not been issued.
Appeal from District Court, Bernalillo County; before Justice Benjamin S. Baker.
Action by the territory of New Mexico against the persons, real estate, lands, and property described in the delinquent tax list of the county of Bernalillo. Judgment for the territory and defendants appeal. Affirmed.
This is a proceeding instituted under the territorial tax statute to secure judgment for the taxes levied upon the Ojo del Borrego Grant in Bernalillo county for the year 1900. The complaint was filed on October 12, 1901, and on November 29, 1901 Elisabeth E. Longwell, and other heirs at law of Robert H Longwell, deceased, all claiming an interest in the premises filed an answer, setting up the fact that said land was granted to one Nerio Antonio Montoya on the 17th day of March, 1768, by the Governor and Captain General of what was then the Spanish province of New Mexico; that said grant had been confirmed by the court of private land claims; that a survey had been made pursuant to said confirmation, and said survey had been duly approved by that court, but that no patent had issued at the date of the assessment of the taxes in question, and that defendants had not at that time paid the one-half cost of survey, which payment section 10 of the land court act (Act March 3, 1891, c. 539, 26 Stat. 854, 858 [U. S. Comp. St. 1901, p. 771]) makes a prerequisite to the issuance of patent. It is claimed by the defense in the answer that until the payment of said expenses and the issuance of patent the legal title to the lands embraced within the grant remained vested in the United States, and such lands were not a proper subject of taxation, and that the assessment for taxes was illegal and void. The territory through its District Attorney, demurred to this answer upon the ground that it raised no defense to the proceeding. The demurrer was sustained, and, defendants electing to stand upon their answer, judgment was rendered in favor of the territory for the taxes levied, together with penalties and costs, amounting in all to $203.57. Thereupon the defendants prosecuted this appeal.
E. W. Dobson, for appellants.
F. W. Clancy, Dist. Atty., for the Territory.
McFIE, J. (after stating the facts).
It is admitted in the briefs filed by counsel for each of the parties that the Ojo del Borrego grant was confirmed by the court of private land claims as a perfect and complete grant; and, while there is a contrary allegation in the answer, it is admitted by counsel for defendant in his brief filed in this court that at the date of the assessment complained of the official survey of the grant had been made under the decree of confirmation, and that at this date said survey had been approved by the court of private land claims. These admissions reduce the present case to a single question, and that is whether or not taxes may be collected upon a perfect grant confirmed by that court, where such grant (to quote from the brief of appellant) "had, at the time of the assessment for purposes of taxation, been surveyed, and the survey thereof approved by the said land court; but where patent therefor had not issued, and the confirmee had not paid one-half of the expenses incurred in making the survey and plat provided for by section 10 of the act of Congress approved March 3, 1891, c. 539, 26 Stat. 858 [U. S. Comp. St. 1901, p. 771]." In other words, does the mere failure to pay these expenses and take out patent preclude the assessment of taxes upon a perfect grant, when, at the date of such assessment, the grant had been confirmed, officially surveyed, and such survey been approved by the court of private land claims? The solution of this question does not seem to be difficult. The finding of the court of private land claims that this was a perfect grant was in legal effect a finding that at the date of the treaty of Guadalupe Hidalgo the owners of this grant held it by a perfect and complete title, since all confirmations are, by the land court act, made referable to the date of cession. What was the legal status of property held under a Spanish or Mexican title which was perfect at the date of the treaty? Was it in any sense inferior to the tenure under a perfect American title at the same date? As to this the decisions of courts of the highest authority are to the effect that it was not. The treaty of Guadalupe Hidalgo of February 2, 1848, following what is said to be "a rule by the laws of nations even in cases of conquest, and undoubtedly so in case of cession" (U.S. v. Wiggins, 14 Pet. 349, 10 L.Ed. 481), provided that the property of Mexicans within the territory ceded should be "inviolately respected"; that they should "enjoy, with respect to it, guaranties equally ample as if the same belonged to citizens of the United States," and should be "maintained and protected in the free enjoyment of their liberty and property." The effect of this treaty, and, indeed, of the law of nations independent of the treaty, was to leave titles which were perfect and complete under Mexico perfect and complete under the United States. They were "intrinsically valid," and needed "no sanction from the legislative or judicial departments of this country." U.S. v. Wiggins, supra; U.S. v. Lucero, 1 N. M. 447. They required "no confirmation." Snyder v. Sickles, 98 U.S. 204, 25 L.Ed. 97. They were "not to be affected or regulated by the political authorities to whom a country is afterwards ceded, any more or otherwise than any private rights and property of the inhabitants of such a country." Barbarie v. Eslava, 9 How. 445, 13 L.Ed. 200, and cases cited. The holder of such a title, when encroached upon, should "find protection in the judicial tribunals, as he can get nothing by a resort to confirmations, or releases, or patents by the political power which acquired the sovereignty over the territory, but not over the property itself, belonging to its inhabitants." Id. "His complete title to lands is strengthened by no confirmation from the United States, who have acquired no interest in them." Id. Even without treaty stipulations, those titles would remain "as valid under the new government as they were under the old" (Strother v. Lucas, 12 Pet. 438, 9 L.Ed. 1137); and, so far as they were consummated, might be asserted in the courts of the United States. Id. The holders of such titles in New Mexico are, at least since the act of March 22, 1854, was superseded by the act of March 3, 1891, at liberty to assert them as against any private claimant in the ordinary courts of justice. Ainsa v. N. M., etc., R. R., 175 U.S. 76, 81, 90, 20 S.Ct. 28, 44 L.Ed. 78; U.S. v. Conway, 175 U.S. 68, 20 S.Ct. 13, 44 L.Ed. 72. It follows, therefore, that, independent of any action on this grant by the court of private land claims, the government, at the date of the assessment, had absolutely no interest in it, but that the owners thereof were vested with a perfect title; a title as good as they held under the former government; one which it is beyond the power of the government to improve by confirmation or otherwise. This being the case, this property constituted "lands *** to which title or right to title had been acquired," and thus within the definition of "property," which, under section 4019, Comp. Laws 1897, may be taxed in New Mexico. That a perfect Spanish or Mexican land grant, although unconfirmed, may be taxed, is distinctly held in Maish v. Arizona, 164 U.S. 599, 17 S.Ct. 193, 41 L.Ed. 567, where, in overruling the contention that the grant was not taxable because unconfirmed, the court said: "It must be borne in mind that in the record before us these land grants are not otherwise described than as
Mexican land grants. For aught that appears, they may have been 'perfect grants,' as they are sometimes called." While it is true that under the Arizona statute controlling that case it was not found...
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