*1 267 P.2d v. GURLEY.

BROWN et al. ux. v. BROWN et

McKAY

No. 5647.

Supreme Mexico. of New Court 16, 1954.

Feb.

township north, west, range N.M. P.M., county, which had Arriba Rio wife, been deeded to and his Ola IS, Brown, Lee January on Wil- liam T. Bookhamer and wife. McKay deny- The defendants answered ing way title of Brown and coun- terclaim asserted were owners in they simple quarter fee of the-southwest sec- 14 by virtue of a tax deed from the State Tax for the half Commission last taxes, having tax sale on January 23, 1942. denying defendant answered by cross-complaint

Brown’s title and sought quiet F. Brown title John *3 property in himself to the described the complaint. wife, Brown F. and Ola Lee John Cornell, Albuquerque, Dudley for John Brown, answered the counterclaim of the Brown.

F. McKays, setting up various defenses Catron, Fe, for Horace F. A. Santa F. against pleading construc- the tax deed and Kay McKay, his Elmyra McKay, Jr., and part the of tive fraud on the treasurer. wife. joined Brown issue on the cross-com- also Cornell, Albuquerque, for Dudley plaint Gurley. of John Brown.

F. The Browns and' made- common Fe, McKay’s Guthmann, the for A. cause in their attack on tax Santa C. H. J. title, was that issue first tried and and as Gurley. void, dispose will tax held we first

the deed McGHEE, Chief that of issue. Justice. McKay attorney appellants for has the de- filed suit F. Brown John findings succinctly summarized the of the so quiet title to southwest to

fendants upon which of law the and conclusions half fact the north of section quarter void, copy we them: 23, was held deed in tax quarter of section northwest attempt- we property June, with which “That in Brown “That the repurchase ed namely, but concerned, from State are SW¼ the Tax was accurate Commission had no record 2 W. 14 T. 14 N. R. Sec. property having for deeded to Bookhamer ly T. assessed to Wm. State. 1937; the first half year that receipt paid 245 is No. was taxes “That at all times material the Coun- 1937; that November sued therefor ty Treasurer acted his official ca- ‘Tax the notation the assessment bears pacity agent and also acted as an 1-20-42’. Cert. 2228 Sale the State Tax Commission. Ar- property in Rio “That sale attempt “That to re- de- taxes were County which riba on repurchase deem acted and/or years, was other linquent diligence solely upon and relied state- January 1942, beginning on held County ments made him by proper- 19th, included Treasurer Tax Commission. and/or property for sale ties offered here involved. “That the Tax Commission did not appearing, “That bidders no other give Brown notice registered mail involved was sold' property here required by Sec. N.M.Stats. opera- New Mexico the State of 1941Ann. sale, day of the the 5th law on “The material conclusions of law- namely January 1942. the court findings relating on “Then, findings relative following validity of the prop- sale sale certificates the issuance of erty for taxes and of the deed from state, the court deeds the Tax Commission to the defendants found: McKay, are: made a June, “That “That property involved re- redeem bona fida effort and/or duly delinquent sold to- state for County purchase Treasurer from the January taxes on 1942. Commission. and from the Tax *4 repre- period redemption relied on the the “That Brown “That for the June, 1944, him property years was sentations to of the from the had redemption believed that he then re- sale and date of that no repurchased prop- legally the deemed effected within the time and/or erty. limited. redemption expired the Treasurer

“That failure of time two> the sale, years January, the assessment in the date or in inform Brown of from to 1944, according testimony tax the name of Bookhamer and of to Brown’s 2228, inquiry he made certificate No. the fail- no whatever as to the sale redeem, property June, permit pay ure Brown to or status his until to the had when treasurer lost all control or repurchase, or constituted construc- sale, the jurisdiction over as we read the subsequent tive fraud voiding statutes, except perform the ministerial deed.

duty issuing a tax sale certificate and tax deed original “That both the state, a to the it having deed recorded and County from Treasurer then it to the State forwarding Tax Com- given state and the Correction Deed Comp. mission. § because of lieu thereof are void he testified he believed had re- Treasurer the constructive of the fraud the property deemed here involved in June permit failing Brown to redeem July, trip or made a 1944. He to the office pay delinquent prior taxes July, of the State Tax Commission in the issuance of deeds. in connection with his but the record taxes lady barren what he or the is November

“That dated deed say, he talked in that office had whom Commission to from Tax speculation they so it is left whether McKays of the con- is because void involved, property here talked of the or the Tax Commission structive fraud of whether he asked to be to redeem allowed neglecting to failing, refusing repurchase any property may which repurchase. permit Brown to have been sold for taxes. He was on the Treasurer failure of “That behalf, witness and it stand July certificate until issue sales a strange he did not tell the conversation having been on (the sale which between himself occurred and the her then issu- 1942), and January employee with whom he if talked certificate, was one an incorrect ing helped have his case. He was not constituting negligence acts of questioned point. on the even fraud. constructive paper Brown did from receive following commission office on which fraud of Treasurer “That trial, upper appeared time at the imputable to the Tax Commis- previously had been torn part which sion.” *5 15S As- then plaintiff’s paper ex- Brown delivered the

off, which was marked Attorney Clancy who took sistant District hibit 6: county Ar- only Rio assigned individual— with seat of “has been it him to yet day. no executed Treasurer. following deed It was county riba de- be checked to stipulated Clancy testify Clerk’s records could he made would any has executed. termine if deed been treasurer as to taxes inquiry of the has paid if tax deed property, Rolls should show Brown’s due on issued & number of same.” According to state to the record official $55.61. what, if to state following not undertake Brown did on the treasurer wrote preceded anything, the above before the above: paper set out torn top was off. following: writing, appeared the Clancy’s back, in was

On the what said to be sum, $19.02, due, shows of which evidence not offered $9.51 was exhibit This paid equal credit for an amount connection it in consider will but we Clancy’s given because of tax sale Mr. certificate No. what stipulation as which is the number called to certificate if he were testimony be by the later issued treasurer at the re- stand. the witness commission, quest the tax and on which as whether Mr. silent record is the tax deed based. records for evidence Clancy checked kept However, It should be in mind the in- visit the abstract sale. office, commission as to land here in evidence troduced Clancy well as Tierra Ama- as- other lands visit as well assessed involved payment taxes, rilla and his of taxes was in July, the name Bookhamer delinquent, not aft- issued after time became some six months * * ; erwards redemption expired. had delay provide a defense to does not Such testimony support any We do find Bennett, 1940, 44 the tax deed. Foster v. finding of trial court *6 618, N.M. 107 P.2d 321. pay on diligence to his taxes moved last property here involved for the the power The of treasurer exe to 1937, except for of after the time half cute is until a tax deed not exhausted a deed expired. redemption He knew the had compliance is made with law. Hood v. Bookhamer for property was assessed Bond, 1938, 42 N.M. 77 P.2d 180. had obtained a deed although and he 1937, he January, did Bookhamer from clearly is by It established file such until November fol- deed inquiry record that Brown no made about paid the day before he lowing, just one the status of taxes on the land in here first on here involved for the taxes the land redemp until after time volved for year. that He no effort half of expired, tion had and at that time the June, pay them until 1944. thereafter by title had vested in operation the state of law. He did have time to effect a re It is true the treasurer did not purchase by or redemption ap making and tax sale certificate a deed issue plication therefor to the State Tax Com descrip that until and state mission, but, stated, as above there is erroneous, but new cer in them was a not a scintilla of evidence in the record as request at and deed were issued tificate he said at what the tax It commission. correctly describing the tax commission may be surmised from what was written legis property. was foreseen It plaintiff’s on exhibit that he asked if the 6 cases where there would lature be a property, commission had tax to the deed neglect issue certificates treasurer If applica not more. Brown had made but 76-718, deeds, provided by for it is § and repurchase redemption tion for or surely Comp.: 1941 have so testified when he he would told of having office going to conversa may issued, be “Tax sale certificates employee. a commission tion with The tes pro- assigned and deeds sold or attempted it timony which to establish by the sale cer- holders cured part fraud on the of the tax constructive (10) within any at time ten tificates falls far short of being upon commission clear the tax the basis after years convincing, which is the standard we such tax certificates were which Lodewick, 1949, purchase redemption. leg- offer of The or it in Lile v. for (cid:127)established completely changed islature has the statutes 511, 212 422. P.2d N.M. procedure handling for the sale not have authori did The treasurer delinquent taxes the time lands for where for time after the ty to the land sell Brown redemption passed, de- has since such Daniel, Ross expired. v. had redemption cision, only and at time here involved 993; Werner N.M. 201 P.2d Tax Commission had such author- State Garcia, 1953, 257 P.2d 929. v. Garcia, ity. Ross v. Daniel and Werner v. by Brown to application if made anSo supra. nothing. (cid:127)official availed The failure of the to send treasurer treasurer trial court found the taxes, property notice had sold Commis agent of the State Tax and of the tax commission to advise gave Brown the former sion that when preferential re right sale and of the the status information erroneous demption repurchase ir were at most redemption had after the time for taxes regularities which were cur covered fraud, (cid:127)expired constructive he committed provisions ative of our statute. 76-720 §§ imputable thereby and that such was Comp. nothing the stat We find commission. *7 sustaining this decisions conclusion. utes or McKays proper objections made The to commission, true, has limited a The is it findings the material adverse the in of supervision over treasurer the sale the adequately presented trial court and have of tax property for taxes and the issuance them here and their claims of error in that certificates, nothing to sus but we find sale regard are sustained. agent of such official is the

tain the claim by state as to bind the commission so it taxation, subject The land was prop may make tax status he as to of ments paid idly were and the taxes Brown sat erty sold where the time theretofore period redemption until the .of had ex redemption expired. has any no kind pired, and there was fraud of practiced Gurley have on him of as and us revive between the time

Brown expiration period rel. v. and the of State ex McFann sessment the doctrine addition, 1929, 86, 206, redemption. 34 278 and In fraud on the Hately, N.M. P. of no part purchased the State hold as no individual had Tax Commission June, 1944, pleaded by Gurley property in had the Browns or estab treasurer or evidence, Brown, it right although sell that his and it was free lished ly pleaded to the treasurer constituted as to the statement an clerk.

161 up con- ordering are set as he Gurley Other minor matters that execute a deed to part property of the treasurer for all structive fraud on the involved in this ac- they merit. but are without tion. McKays

The entitled to a decree are here, After the case was submitted we purchased by quieting title to the land them suggested parties in that view of the from the Commission State Tax presumptively fact Mrs. Brown owned one- Gurley. the Browns and property half of the aas tenant in common community with-the husband, and herself presents The this an record in case perhaps indispensable she was party an un- unusual situation as to the issues between holding Gale, der Hugh our K. Post No. Gurley. property and The Brown 2182 Veterans of Foreign Norris, Wars v. wife, Lee deeded to Brown and his Ola 1949, 201 P.2d and invited Brown, provisions under the and supplemental them to file ques- briefs on the Comp., opinion and our § tion. August Tillian, v. N.M. conveyance presumptively Gurley thereupon P.2d filed motion asking a a grantees one-half interest in the vested Mrs. Brown party be made a formal community property, remaining Gurley-Brown and the action, asserting she had so participated interest in wife one-half as a tenant in the suit that she awas party, anything The invoking provisions common. record void of of Su- preme destroy presumption, that would Court Rule (11), which reads: effect question. of the deed was not in judgment “After final rendered in fact, Notwithstanding cause, this Brown any may, alone the court in further- quiet against McKays suit title filed justice, ance on such terms as Gurley. McKays by cross-com- may just, be amend affirmance of plaint brought in Lee any record, Ola de- as a judgment, pleading, such quiet fendant to their suit to process, entry, title on the proceed- return or other deed, Gurley cause, but counterclaimed against ings by adding or strik- alone, and he alone 'by answered ing party, Gur- the name of out a cor- By requested findings ley. recting mistake in conclusions the name of a quiet title party respect, action mistake in any was con- or a *8 other specific perform- into an action for by imperfec- verted rectifying or defects or ance, apparently by consent, .form; or at least and tions in matters of record, objection judg- without in the judgment and shall not be reversed or an- against alone, was rendered ment Brown therefor.” nulled promissory annually, maturing *9 title, as well as the issues between Brown 124 P. 798. We have never aijid Gurley. party She was a to the con- before heard it asserted that one who files troversy McKays with the and as such en- complaint such a must attach thereto the in- requested titled to findings make and con- upon struments prove, which he relies to his clusions. We do not feel this joining of the chain of title. ruling The of the trial court instruments under one folder the attor- was correct when made as the record then stood. ney prepared who them was sufficient to party make her a against Gurley. as She opinion We are also appears joined

next where she in the mo- acquiesced Gurley when Brown changing in appeal, evidently for an but she discov- one,for specific performance his action to no judgment ered had been rendered question Gurley’s raising without her, against and she anything has not filed right pleading, to do so on his he waived in this against Gurley. court any right urge error on account of the opinion immediately We are of the Mrs. Brown was matters set out above. indispensable party an action. this This judgment will be reversed and an why additional judgment reason in cause remanded to District Court with Gurley favor must be re- Brown the judgment instructions vacate hereto- versed. rendered, fore to enter in one favor of McKays quar- quieting their title complains strongly them, permit ter section claimed and to permitting in action of court parties bringing of new in and such prove objections over the contents of may necessary as be amendments trial April, in claimed written contract dated of the issues between Browns and Gur- copy when he had not attached a proper ley parties pleadings. with It pro pleading, original filed the is so ordered. by Rule Proce (k), Rules Civil vided dure, allege the loss and had failed COMPTON, SADLER, LUJAN, provided such instrument as § JJ., concur. Comp. - stated, Gurley’s As heretofore counter SEYMOUR, special- (concurring Justice cross-complaint against claim or Brown was ly)- quiet title, statutory form of suit to opinion filing foregoing except I concur and we do understand one comply respect, must more than with the one immaterial to action do the conclusion statutory.form. Enriquez, v. reached. Oliver his wife

By the deed to Brown acquired a opinion my Mrs. ten- property as a in the

one-haif interest is in this statement

ant common. While Tillian, August v. case of with the

conflict *10 590, my judg- P.2d wrong. case in that

ment the decision special concur- only purpose of this having the rule

rence is an effort avoid proper- a rule case become

stated in that

ty. P.2d al et

STATE v. WISE

No. 5726.

Supreme New Court of Mexico. 21, 1954.

Jan. 22, 1954. Rehearing March Denied Hobbs, Mex., Mur- Quinn, New Easley & Howze, Monahans, Tex., appel-

ray J. lants, Robinson, Atty. Gen., H. Fred Richard Attys. Standley, Kegel, Walter Asst. M. R. Gen., appellee.

COMPTON, Justice. Appellants County were convicted Lea breaking crime of and entering notes with opposing the mo- McKays brief filed a The interest, in these other clauses usual by registered and tion, also letter and real es- executory the sale of Gurley’s ac- contracts for cause of opposition, saying as n Gurley sign this latter con- sale tate. refused to upon for the a contract based it, therefore, effec- by tract and never became Mrs. signed was not land which of event, any tive a sales contract. Brown, recover could not he in order that case back sending the and that request Gurley At the trial only party a might be made re7 she Gurley’s rights court rested on found effort. a of time and in waste suit Mrs, (which April, contract this, plus sign) Brown did not and actual Brown, his court found that The trial possession by. Gurley for a time before contract Gurley signed a written and wife leaving years, for is the state several whereby agreed the Browns April, judgment. being basis Such state buy Gurley the land agreed sell and record, 65- we cannot affirm under § payment, and an- a down small question Comp., Adams and our decision in period a made over payments to be nual Blumenshine, 1922, v. 204 P. been had not aban- that the contract years; if disregard 20 A.L.R. even we Gurley, although he was delin- doned party a failure to make Mrs. Brown the Browns had payments, quent in his and action, Gurley the judgment hold enter7 forfeiture. a not declared only community ed effective as to the inter7 signed the finding that Mrs. Brown est. support in the has no whatever contract Gurley’s In answer brief he raises lost, pro- not be could It had record. question estoppel and ratification trial, Gurley was allowed at the duced Brown, nothing Mrs. we b.ut find testimony, but contents oral show its below, the record to show such were issues Mrs. Brown did he testified both and Brown and he cannot raise here for them the first it, in his brief does not sign great time. The number of New Mexico According sign it. contend she did holding cases so are to be found in the New very testimony, this a informal contract Digest title, “Appeal under the Mexico paper on one sheet of drawn <®=,169. Error,” beyond agreement in it little had but sell, description of and the is true joined the land It Mrs. Brown in making payment. later requested findings Some five months of fact and terms conclusions law, they pre- wife had formal contract and that covered the Brown and issues be- clauses, provision McKays the Browns pared forfeiture tween on the