Williams v. Pelt

• Decision Date: 20 December 1930
• Docket Number: No. 3340.,3340.
• Parties: WILLIAMSv.VAN PELT.
• Court: New Mexico Supreme Court

35 N.M. 286

295 P. 418

WILLIAMS

v.VAN PELT.

No. 3340.

Supreme Court of New Mexico.

Dec. 20, 1930.Rehearing Denied Feb. 7, 1931.

Syllabus by the Court.

One against whose land judgment was rendered establishing validity of tax could not thereafter attack judgment because of assessor's failure to subscribe oath to assessment roll; requirement that assessor take, subscribe, and attach oath to assessment roll is not essential to validity of tax (Laws 1917, c. 80, § 10; Code 1915, § 5464).

Under section 10, c. 80, Laws of 1917, one against whose land a judgment has been rendered establishing the validity of tax cannot subsequently question such validity on the ground that assessor failed to “take, subscribe and attach” the oath to the assessment roll required by section 5464, Code of 1915, since such requirement is not one essential to the validity of the tax.

Failure to verify portions of duplicate roll does not prevent use thereof as complaint in tax suit or affect jurisdiction (Laws 1921, c. 133, § 421).

Section 421, c. 133, Laws of 1921, authorizing use of portions of duplicate roll, when corrected by marginal notes or otherwise, as complaint in tax suit, does not require such complaint to be verified, and lack of verification does not affect jurisdiction of the court.

Law in force when sale Is made governs redemption from tax sales and validity of tax titles.

Redemption from tax sales and validity of tax titles acquired thereunder are governed by law in force when sale is made; and a sale made in October, 1921, for delinquent taxes of 1920, is governed by provisions of chapter 133, Laws of 1921.

Where period for redemption had expired and no defense against tax title existed, registered mail or publication notice of intention to apply for tax deed was not indispensable (Laws 1921, c. 133, § 453).

Section 453, c. 133, Laws of 1921, does not extend time of redemption beyond three years from date of sale, and where time for redemption had expired, and no defense against tax title existed, failure to give registered mail or publication notice of intention to apply for tax deed, as required by section, did not invalidate a tax deed obtained without such notice.

Appeal from District Court, De Baca County; Hatch, Judge.

Suit by R. F. Williams against John A. Van Pelt. From the judgment, defendant appeals. On rehearing.

Reversed and remanded, with directions to enter judgment for defendant on his cross-complaint.

Section 453, c. 133, Laws of 1921, does not extend time of redemption beyond three years from date of sale, and where time for redemption had expired, and no defense against tax title existed, failure to give registered mail or publication notice of intention to apply for tax deed, as required by section, did not invalidate a tax deed obtained without such notice.

Keith W. Edwards, of Ft. Sumner, for appellant.

H. R. Parsons, of Ft. Sumner, for appellee.

SIMMS, J.

After a rehearing, we have concluded to withdraw the original opinion, and it is so ordered.

In the year 1919, one James W. Tinkle received from the government a patent to the land here involved. It was assessable for taxation for the year 1920, but he failed to return it. The assessor made up the roll and placed thereon the land in question, with penalty for nonrendition, and delivered the roll to the treasurer. He failed to “take, subscribe and attach” to the roll the oath required by section 5464, Code 1915. The taxes were not paid. By chapter 133, Laws of 1921, the Legislature permitted suits to be brought and judgments rendered for delinquent taxes of prior years. Section 478. This act became effective March 12, 1921. Later in the summer of that year suit was brought for delinquent taxes of 1920 under that act. Service by publication was had, and Tinkle filed no answer nor did he appear. On October 29, 1921, judgment in rem was rendered against his land, along with that of others, adjudicating the validity of the tax, its nonpayment and delinquency, and ordering sale which was made December 10th and confirmed December 20th following. The county was the purchaser and received the certificate of sale required by statute. On July 14, 1924, about two years and a half after sale, Tinkle and wife, by deed acknowledged in Texas, sold the land to Williams, who recorded it within a week. He did nothing about redeeming the land. Thus matters stood until January 2, 1926, over four years after the sale, when appellant Van Pelt bought the certificate from the county. On the same day, the treasurer sent a letter addressed to Tinkle at his last known post office address, informing him that he had on that day sold the certificate to Van Pelt, giving the land numbers and amount of taxes and interest, and advising him that redemption had expired January 18, 1925. In April, 1926, Van Pelt applied for and received a tax deed from the treasurer, without giving by registered mail or publication the notice required by section 453 of the act of 1921. In 1927 Williams commenced suit to quiet title, in which Van Pelt answered, denying plaintiff's title and by cross-complaint set up his own title and prayed that it be quieted. The trial court held that the tax title was void because of the assessor's failure to verify the roll and by reason of the appellant's failure to give the notice of application for the tax deed, and entered judgment for the appellee, Williams; and Van Pelt, who held the tax title, appealed.

[1] 1. Appellant contends that the statute (section 5464, Code of 1915) which directs the assessor to take, subscribe, and attach an oath to the assessment roll was directory, merely, and that a failure to comply with its terms was not fatal to the validity of the tax. There are decisions which support this view. State v. Timbrook's Estate, 240 Mo. 226, 144 S. W. 843; Board of Commissioners v. Field, 63 Okl. 80, 162 P. 733, and cases cited therein; Krutz v. Chandler, 32 Kan. 659, 5 P. 170; Wallapai Mining & Development Co. v. Territory, 9 Ariz. 373, 84 P. 85, and cases cited therein; Cooley on Taxation (4th Ed.) § 1172, note 81. Appellee insists that the statute is for the protection of the taxpayer and cites authority holding that it is mandatory. Cooley on Taxation (4th Ed.) § 1172. Both parties agree that the validity of the tax is to be determined by the law in force when it was assessed. Such we understand the rule to be. That law was section 5464, supra, and chapter 80, Laws of 1917, section 10 of which provides that judgment in a tax suit shall cut off all defenses which existed at the time of its rendition, except the two of nonliability for taxation and payment. In Pace v. Wight, 25 N. M. 276, 181 P. 430, and in Manby v. Voorhees, 27 N. M. 511, 203 P. 543, we discussed the fundamentals or essentials of taxation which must be present in order for the tax to be valid and said that curative provisions, such as section 10, supra, were not intended to cut off and could not cut off defenses based upon the absence of these essentials. It thus becomes apparent that the question presented in this case is not to be determined by labeling the requirement for verification by the assessor as “directory” or “mandatory,” but must be decided by ascertaining whether or not the requirement for verification partakes or the nature of an essential of taxation, which the Legislature was powerless to eliminate as a defense to the judgment. While the requirement for verification no doubt is for the protection of the taxpayer, it is, nevertheless. merely the expression of a legislative policy and could have been dispensed with altogether had the lawmakers chosen so to do. We can not see how it is in any way related to the fundamental or basic requirements of taxation and feel constrained to hold that, since it is not an essential, it falls within those things...