Velasquez v. Mascarenas

Decision Date16 November 1962
Docket NumberNo. 6919,6919
Citation376 P.2d 311,71 N.M. 133,1962 NMSC 157
PartiesLena M. VELASQUEZ, Frank Mascarenas, Manuel Mascarenas, Jr., John T. Mascarenas, Madaline M. Espinosa, Ernest W. Mascarenas, Aida Mascarenas, Rafael Martinez, Aurora M. Sanchez, Salvador Martinez, Lidia M. Martinez, Raynel A. Martinez, Albert Martinez and Tranquilino Mascarenas, Plaintiffs-Appellants, v. Celso MASCARENAS, Defendant-Appellee.
CourtNew Mexico Supreme Court

Burnham & Burns, James H. Milling, Aztec, for appellants.

Koogler & Smith, Aztec, for appellee.

CHAVEZ, Justice.

Appellants, plaintiffs below, filed suit to impose a constructive trust on certain land in San Juan County and for an accounting. Celso Mascarenas, one of four defendants, answered denying the allegations of the complaint and setting up laches and statute of limitations. By cross-complaint, appellee sought to quiet title to the land involved which he had repurchased from the state on July 21, 1942. Two of the defendants disclaimed any interest and the other defendant was found by the trial court to be a non-resident upon whom no process was served.

The cause was tried by the court without a jury, who found for appellee, Celso Mascarenas. The judgment ordered the dismissal of appellants' complaint and quieted title to the land in Celso Mascarenas.

Upon the basis of the trial court's findings and the evidence, the following facts are established.

All parties are heirs of Manuel D. Mascarenas, Sr., who died intestate on May 28 1939, owning community property which is the subject of this suit. The heirs of Manuel D. Mascarenas, Sr., were his widow, Maria J. Mascarenas, twelve living children, and the heirs of a deceased daughter. Maria J. Mascarenas died on or about June 25, 1944.

On December 4, 1939, a tax certificate issued to the state for delinquent 1938 taxes. On May 13, 1940, Maria J. Mascarenas quitclaimed her interest in the property involved to plaintiffs, Manuel Mascarenas, Jr., Tranquilino Mascarenas, Ernest Mascarenas, and Aida Mascarenas. On May 14, 1940, appellee, Celso Mascarenas, quitclaimed his interest in the land involved to Manuel Mascarenas, Jr. On or about May 14, 1940, appellants, Manuel Mascarenas, Jr., Tranquilino Mascarenas, Ernest Mascarenas and Maria J. Mascarenas, executed a mortgage against said property to secure money with which to pay debts and costs of administration incurred against the estate of Manuel D. Mascarenas, Sr., deceased. Appellants failed to pay this mortgage.

On December 4, 1941, the property in this suit was sold and conveyed to the state for taxes delinquent and unpaid for the year 1938. Subsequently, an outsider's offer to purchase was refused by the state on the basis of the application of appellee, Celso Mascarenas, to repurchase the property, wherein Celso Mascarenas asserted that title to the property was vested in him at the time of the issuance of the tax deed.

Appellants, or some of them, were in possession of the property from the time of the death of Manuel D. Mascarenas, Sr., in May, 1939, until on or about August, 1942, when appellee, Celso Mascarenas, at the request of plaintiffs, or some of them, took possession of the property pursuant to the following agreement entered into on June 29, 1942:

'This is in agreement with Maria L. de Mascarenas, Manuel Mascarenas, Transquilino Mascarenas and Ernesto Mascarenas, parties of the first part with Celso Mascarenas part of the second part, dated this 29th day of June, 1942.

'It is agreed that parties of first has given Celso Mascarenas party of second part all right to take possession of said land that has been mortgaged to Mr. Cristabal Gomez; that Celso Mascarenas is to pay the mortgage and all taxes against this land for this said right.

'It is also agreed that party of second part shall support Maria L. de Mascarenas, mother of all parties, for the rest of her life and that the total 1942 crops; all kinds, shall belong to party of second part together with the following farm machinery as stated herewith:

1 wheat drill

1 corn planter

1 binder

1 disk cultivator

1 hay rake

1 riding plow

1 harrow

1 lister

1 scraper

1 ditcher.'

On July 21, 1942, Celso Mascarenas repurchased the property from the state. A tax deed was issued and duly recorded.

The trial court found: That in the summer of 1942, at the request of plaintiffs, or some of them, appellee, Celso Mascarenas, in return for the right of possession of the property in suit as his own property, agreed to support his mother, Maria L. de Mascarenas, and the sister, Aida Mascarenas, until the death of the mother; that appellee, Celso Mascarenas, also agreed to pay the mortgage and the taxes; that on or about July 21, 1942, appellee, Celso Mascarenas, in good faith, with the intent of acquiring title in himself, purchased the property in suit from the state and thereafter promptly recorded the deed of conveyance; that upon receipt of the deed to the property from the state, appellee immediately took possession of the property as his own and has, since August 1942, continuously maintained such possession, exclusively and openly against each and all of the plaintiffs, and has paid all taxes assessed against said property from 1942 to the present time; that from August, 1942, until the filing of the complaint on May 6, 1959, appellee, Celso Mascarenas, openly and with the knowledge of plaintiffs, has continuously taken all income from said property and has made improvements thereon at his own expense.

Appellants raise four points upon which they rely for reversal:

'I. A person in a fiduciary relation to another who purchases property for himself individually may be chargeable as a constructive trustee of the property, even though he purchases it from a third person and not from himself as fiduciary. He is chargeable as a constructive trustee where he purchases for himself property which he should purchase for the beneficiary.

'II. Although defendant relied solely upon his affirmative defense of laches at the trial, he failed to establish the necessary elements thereof.

'III. The trial court had no jurisdiction to quiet defendant's title to the property in question as demanded in defendant's counterclaim because his counterclaim is not within the purview of the quiet title statute.

'IV. Plaintiffs are entitled to an accounting by order of the court upon establishment of their right.'

The relationship between the parties to this suit is determined by four factors: (1) the ties established by the fact that they were heirs at law of Manuel D. Mascarenas, Sr. by reason of which they were coheirs and cotenants of the land in question; (2) the quitclaim deed from Celso Mascarenas to Manuel Mascarenas, Jr.; (3) the agreement whereby Celso Mascarenas was given the right to take possession of the land in question; and (4) the length of time that Celso Mascarenas held possession of the land while he kept the rents and profits therefrom for his own purposes, until he was challenged by this suit.

In order to avoid the rule of Smith v. Borradaile, 30 N.M. 62, 227 P. 602, and other of our cases, to the effect that a cotenant who redeems from a tax sale does so for the benefit of all the cotenats, Celso Mascarenas had to establish that there was a severance of the cotenancy. This he attempted to do by two means: (1) his quitclaim deed to Manuel Mascarenas, Jr.; and (2) his repurchase from the tax sale to the state. He would treat the quitclaim deed as an effective divestiture of his interest as a cotenant so that the cotenancy was severed. Then, by reason of his agreement with four of his coheirs, he would claim sufficient interest in the property at the time of his repurchase from the state to avail himself of the provisions of the repurchase statute. All that the cotenants retained after the sale to the state was the right to reacquire title to the land in accordance with the statute pertinent thereto. Sec. 76-740, N.M.S.A., 1941 Comp. The wording of this provision establishes the interest of one whose land has been sold to the state for delinquent taxes. It reads:

'The person whose title to property has been extinguished by the issuance of a tax deed to the state shall have the first and prior right to repurchase such property, * * *.'

Note that the statue states that the title of the person, whose property is the subject of a tax deed to the state, is extinguished. Section 72-8-31, N.M.S.A., 1953 Comp., amended Sec. 76-740, supra, to read as follows:

'The person, or any lienholder, whose title to or interest in property has been extinguished by the issuance of a tax deed to the state shall have the prior right to repurchase such property.'

The status of the title in the state upon issuance to the state of a tax deed in such a situation is described in Sec. 76-724, N.M.S.A., 1941 Comp., now Sec. 72-8-15, N.M.S.A., 1953 Comp., as follows:

'* * * The title so acquired shall be in all respects the same as any title acquired by the state by purchase; * * *.'

The statute is clear that the 'person whose title to property has been extinguished by the issuance of a tax deed to the state' has the prior right to repurchase the property, and we are committed to the rule that:

'* * * the exercise by the 'person whose title to property has been extinguished by the issuance of a tax deed to the state,' of the exclusive privilege accorded to him is nothing more nor less than redemption of the property and the title thereto which has been so extinguished.'

Langhurst v. Langhurst, 49 N.M. 329, 164 P.2d 204; Sanchez v. New Mexico State Tax Commission, 51 N.M. 154, 180 P.2d 246; Chavez v. Chavez, 56 N.M. 393, 244 P.2d 781, 30 A.L.R.2d 1236; Morris v. Ross, 58 N.M. 379, 271 P.2d 823; Trujillo v. Montano, 64 N.M. 259, 327 P.2d 326. Thus, the redemption and payment of the taxes restores the title of the property to its status prior to the tax sale.

It is obvious that the legislature did not intend to permit persons whose...

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