Titsworth Co. v. Analla

• Decision Date: 17 January 1920
• Docket Number: No. 2338.,2338.
• Citation: 186 P. 1079,25 N.M. 628
• Parties: TITSWORTH CO.v.ANALLA et al.
• Court: New Mexico Supreme Court

25 N.M. 628

186 P. 1079

TITSWORTH CO.

v.ANALLA et al.

No. 2338.

Supreme Court of New Mexico.

Jan. 17, 1920.

Syllabus by the Court.

Failure of the county treasurer to sell a tax sale certificate at public auction at the end of one year after the purchase of the same by the county, as required by section 26, c. 22, Laws 1899, does not destroy the right of the treasurer to thereafter sell such certificate at private sale.

Where, in a suit to quiet title, the plaintiff alleges that it obtained title by virtue of the purchase of a tax sale certificate and the deed issued upon such certificate, a tax sale certificate and deed offered in evidence, showing the purchase by a party other than the plaintiff, are properly excluded.

Generally in the case of a variance between the allegation of the pleading and the terms of the instrument set out as an exhibit, the exhibit will control. Where a party in a suit to quiet title alleges that he is the owner of the real estate in question by virtue of a tax sale certificate and tax deed, attaching the same to his complaint as exhibits, and making the same part of his complaint, and such exhibits show no title in the plaintiff, the complaint fails to state a cause of action.

Appeal from District Court, Lincoln County; Medler, Judge.

Suit by the Titsworth Company against Manual Analla, Pedro Pina, and others, to quiet title, with default or disclaimer by all defendants except Pina. Judgment for defendant Pina dismissing the complaint without prejudice, and plaintiff appeals. Affirmed.

Where, in a suit to quiet title, the plaintiff alleges that it obtained title by virtue of the purchase of a tax sale certificate and the deed issued upon such certificate, a tax sale certificate and deed offered in evidence, showing the purchase by a party other than the plaintiff, are properly excluded.

Geo. W. Prichard, of Santa Fé, for appellant.

C. O. Thompson, of Roswell, for appellee.

ROBERTS, J.

Appellant, a corporation, filed suit in the district court of Lincoln county to quiet title to certain described real estate. It alleged that it was the owner of the real estate described and undertook to set out specifically its deraignment of title. The complaint contained two counts. Under the first, appellant alleged that it deraigned title by virtue of a certain special master's deed, executed pursuant to a decree of foreclosure. Under the second count it set up title under a tax deed. It alleged that the property had been sold to the county of Lincoln for delinquent taxes; that a tax sale certificate had been issued by the county; that it purchased the same and took an assignment thereof, setting forth the dates; that thereafter a tax deed had been issued to it by the county treasurer of Lincoln county. The tax sale certificate and tax deed were designated as Exhibits D and E in the complaint and attached to and made a part of the same by appropriate allegations.

All the parties defendant either defaulted or disclaimed interest, except Pedro Pina, who answered denying the allegations of the complaint, and set up facts which, if true, showed that he was the owner of the legal title. No demurrer was filed to the complaint.

The cause came on for trial before the court, and appellant disclaimed any title under the foreclosure proceedings, but relied solely upon the tax deed. It offered in evidence the tax sale certificate and tax deed, both of which upon objection were excluded. It also offered in evidence a quitclaim deed from...