after stating the case, delivered the opinion of the court.
Thе district court dismissed the intervening petition on the ground that it presented no claim against the property or the parties. The reversal by this court of such order is an adjudi
*540
cation that upon the face of the petition a valid claim was presented, and is conclusive of such
prima facie
validity, not merely against objections which were in fact made but also against those which might have been made.
Cromwell
v.
Sac
County,
The case was heard in the district court upon an agreed statement of facts, which was thereafter certified by the Supreme Court of the Territory as a statement of facts under the act of April 7, 1874. We have had several occasions to consider the effect of an agreement of the parties as to the facts. See Wilson, Receiver &c. v. The Merchants’ Loan & Trust Co. ante, 121, and cases cited .in the opinion. An agreed statement of facts mаy be the equivalent of a special verdict or a finding of facts upon which a reviewing court may declare the applicable law if such agreed statement is of the ultimate facts, but if it be merely a recital of testimony or evidential facts, it brings nothing before an appellate court for consideration. The same rule obtains in cases of appeals from territorial courts under the act of 1874. That act in terms provides that—
“ On appeal, instead of the evidеnce at large, a statement of the facts of the case in the nature of a special verdict, and also the rulings of the court on the admission or rejection of evidence when excepted to, shall be made and certifiеd by the court below.” Stringfellow v. Cain,99 U. S. 610 ; Idaho & Oregon Land Company v. Bradbury,132 U. S. 509 .
Tested by the various authorities just cited the certified statement of facts-is insufficient, and presents nothing for our examination: This disposes of most of the questions discussed by counsel.
When the mandate from this court was filed in the district cоurt, a motion to dismiss and also pleas in abatement and in bar were successively filed, argued and overruled. We-shall not attempt to notice in detail the various matters presented'in the motion and pleas. It will be 'sufficient to state our conclusions upon the important questions.
*541 There was no invalidity in the fact of additional assessments. Indeed, the claim in the petition was wholly for taxes based upon additional assessments for prior years, and when this court adjudged that that petition uрon its face showed a tax claim against the property, it was an adjudication in favor of the validity of such additional assessments.
The filing of the intervening petition and the final adjudication thereon were in time. It is true the petition was not filed until after the sale had been confirmed and the master’s deed executed, and that by the decree of confirmation the receiver was directed to then turn over the property to the purchasers. It may be also conceded аs generally true that a retention by a receiver, after the time for the delivery of the property in his hands, is as agent of the purchasers.
Very
v. Watkins,
“ Any such claim for indebtedness, obligations or liabilities which shall not have been presented in writing to the receiver or filed with the clerk of this court prior to the time of delivery of possession of such property, shall be presеnted for allowance and filed within six month's after the first publication by the receiver of a notice to the holders of such claims to present the same for allowance.”
Indeed, the petition was filed while the property was still in the hands of the receiver, and that would seem to bring the action of .the inter venor within the terms of the first 'clause of the quotation just made. At any rate everything in the district court, even its final adjudication, was before October 23, 1899, the .time fixed in the notice for the cutting off of claims against the property given at the instance of the grantee of the pur-, chasers, to wit, the Santa Té. Pacific Bailroad Company. That the receiver had been discharged before such mandate was filed, or final proceedings had, is immaterial, as the grantee of the purchaser (the present owner of the property) had made itself a party to the record by coming in and praying for the publication of a notice to cut off claims.
Neither can the Santa Fé Company claim that it was misled *542 in any way as to its liability- for these taxes, for not only by the terms of the decree was the sale to be made subject to any indebtedness that might subsequently be charged against the property prior in lien to that of the mortgages foreclosed, but also оn the, confirmation of the sale and before it toot title from the purchasers at such sale the order specifically included within the obligations which must be assumed any taxes which might “ finally be adjudged to be a lien upon .the property.” .
No ordеr Avas necessary for retaking possession. By the terms of the decree the court, although the actual possession was surrendered, retained a constructive control Avhich it could enforce whenever its orders Avere not comрlied Avith, and the present proceeding Avas to establish that the property Avas subject to these taxes. The proceeding Avas initiated not only Avhen there was a qualified control, but also an actual possession of the propеrty, and no subsequent orders of the court put an end to. its jurisdiction to proceed to an inquiry as to the validity of the tax lien. The reversal of the order of dismissal by this court reinstated the proceeding in the trial court'as.of the date of the order of dismissal. If the decree is not complied Avith by the present owners of the property, it may then become necessary to order a retaking of possession.
"While the description in the intervening petition of the property sought to be subjected to the taxes may be indefinite, the property is sufficiently described in the decree, and it must be assumed that the testimony Avarranted the description.
These are all the matters Ave deem it necessary to notice, and we are оf opinion that in the record, so far as we are at. liberty to examine it, is disclosed no error prejudicial to the .rights of. the appellants.
On its cross appeal the Territory, AVhich had obtained a properly certified statement of facts sufficient for the questions it presents, contends' that it was entitled to recover the amount of the tax upon 60.1 miles of road, as. fixed by the assessments, whereas the court found that there Avere only 55.5 miles subject to taxation, and made the award upon the basis of assessments upon that extent of road. It insists that the assessments were conclusive of the amount due because no appeals to correct *543 them were taken, as permitted by law. It further says that in any event the statement made in the pleas and sworn to by the solicitor for the trust company and the receiver, “ that about 58 miles of said right of way in said county and Territory was and is through land which was not government land, but which belonged to private individuals or corporations, and was acquired by the railroad company under and through the right conferred upon it by said act of Congress,” should be held conclusive as to the number of miles subject to taxation. The trial 'court found, as stated, that there were 55.5 miles so subject. This finding was approved by the Supreme Court and is conclusive upon us as to the fact; and if in truth there were only so many miles of road subject to taxation, it would be inequitable to adjudge a greater liability, for that would be enforcing taxes upоn property which was not subject to taxation.
Again, it is contended that the Territory was entitled to a 25 per cent penalty under section 4035 of the Compiled Laws of New Mexico, 1897, which reads:
“ If any person, liable to taxation,- shall fail to render a true list of his property, as required by the preceding three sections, the assessor shall make out a list of the property of such person, and its value, according to the best information he can obtain; and such person shall bе liable, in addition to the tax so assessed, to the penalty of .twenty-five per cent thereof,, which shall be assessed and collected as' a part of the taxes of. such person.”
It is enough to say that no such penalty was claimed in thе intervening petition. Penalties are not favored in equity, and seldom will a chancellor enforce penalties in favor of a party who does not ask for them. Again, by the terms of the section, the penalty is to be “ assessed and collected as a part of the taxes,” and the record shows no assessment of the penalty.
A final contention is in respect to interest. Section 4066 of the Compiled Laws provides:
“ On the first day of January in each year half of the unpaid -taxes for' the year last past, and. on the first day of July in each year, the remaining half of the unpaid.taxes for the year last past, shall become delinquent and shall draw interest at the *544 rate of twenty-five per cent per annum, but the collectоr shall continue to receive payments of the same after the first day of January and,July until the day of the sale.”
The district court ignored the provisions of this section, and allowed interest at the rate of 6 per cent per annum from the times thе taxes became delinquent in the several years. The Supreme Court modified this, and allowed interest only from October 5, 1899, the date of the decision in the district court. In 1899 the legislature passed a- new statute in reference to taxes. Chap. 22, p. 47, Laws of New Mexico, 1899. By section 10 of that act section 4066 of the Compiled Laws was in terms amended, and in lieu of the 25 per cent different and graded penalties were enforced. By section 34 of that act “ the time for the payment of all taxes now delinquent is hereby extended to May 1, 1899, and when the same may be in litigation at the date of. the passage of this act until such litigation be determined.” Other provisions of this section, taken in connection with a statute passed at the same session of the legislature, (chap. 52, p. 106, Laws, 1899,) referred to by the Supreme Court of the Territory in its opinion, may render it doubtful whether the legislature intended to remove the penalty of 25 per cent interest in respect to this property; for suсh interest in tax proceedings is in the nature of a penalty. Yet, irrespective of this statutory question, we are of opinion that there was no error in refusing to enforce this charge against the property. The assessment was made in gross uрon 60.7 miles of road, without specification of the particular miles other than that they were “ embraced within said right of way where it runs over land which was held in private ownership at the time of the grant of said right of way to said railroad compаny.” The finding of the court shows that no such length of railroad was subject to taxation, but only 55.5 miles, and those were specified and described. The owners of the road were, therefore, justified in contesting their liability to such assessment and taxation in gross, and until there was an identification of the property subject to taxation, and a determination of the amount of taxes due, it would be inequitable to charge penalties for non-payment.
Lake Shore & Michigan Southern Railway Co.
*545
v.
People,
The deoree of the Supreme Court of New Mexico is affirmed, each party to pay the costs of its appeal to this court.