Wilson v. Matson, 25 N.M. 67

Wilson v. Matson

25 N.M. 67 | N.M. | 1918

OPINION OP THE COURT.

HANNA, C. J.

(after stating the facts as above.)

[1] The only point in this case seriously urged by appellant is that the failure of the appellee Bryan to pay the taxes levied and assessed against the property in question for the year 1914, resulting in the sale of said property for delinquent taxes for said year, extinguished the right to title acquired by the said appellee Susie P. Bryan, through her purchase of the duplicate tax certificate for the years 1912 and 1913. Quoting from appellant’s brief, this contention is “that any subsequent sale for taxes extinguishes all liens for sales of property for delinquent taxes made in prior years, except in those eases where the property sold is purchased by the county.” It is argued that the object of the statute is to preserve the lien of the county when the property is struck off to it upon a tax sale thereof, and that notwithstanding the same property may be sold for delinquent taxes for a subsequent year, and that the lien acquired by an individual who purchased at a tax sale, or who thereafter purchased the certificate issued when the property is struck off to the county, does not acquire a permanent or continuing lien upon the property sold unless such purchaser pays the taxes levied and assessed against the property for the subsequent year or years.

With this contention of appellant we cannot agree. Appellant has clearly overlooked or failed to give adequate force to certain definite statutory provisions, as the same appear in our statutes upon the subject. By section 5500, Code 1915, it is provided that when any property shall be struck off to the county, it shall be the duty of the county treasurer to sell and assign the duplicate certificate of such sale to any person who will at any time pay the full value thereof, with accrued interest. By chapter 78, Laws of 1915, section 5502 of the Code of 1915 was amended, among other things, providing as follows:

“Real estate sold for taxes, whether struck off to the county or to others, shall continue' to be assessed in the name of the original owner, or to unknown owners, as the case may be., until the redemption period shall have expired, and taxes thereon for the time during which said certificate or duplicate certificate shall be held by the county or a purchaser shall be a lien upon said property until paid.”

The amendatory act of 1915 (chapter 78), referred to, further provides that the certificate of sale is subject to the right of the owner to redeem the property within three years by paying the amount paid at such sale, with interest thereon, at the rate of 1 per cent, per month, and that such former owner may, at any time within said period of three years from the date of such certificate, redeem the property by paying the amount of purchase money, with interest thereon at said rate, together with any taxes which may have been paid upon the property by the purchaser or his assigns, with interest at the same rate, and that such former owner may retain possession of the property until the time of redemption has expired. By the provisions of the statutes referred to, it is clearly apparent that, the certificate of sale which should be issued in connection with all tax sales, or duplicate certificates, are subject to a right of redemption in the owner within three years upon the conditions specified by the statute, and until the redemption period has expired the taxes for the time during which such certificate or duplicate certificates, are subject to a right of redemption in the owner within three years upon the conditions specified by the statute, and until the redemption period has expired the taxes for the time during which such certificate or duplicate certificate shall be held by the county, or purchaser, shall be a lien upon the property until paid. This is a clear statutory expression, contrary to the contention of appellant that the lien imposed on the property from ye.ar to year -becomes a paramount lien without regard to any pre-existing lien. Should the holder of a second or subsequent certificate secure a tax deed before the holder of the prior certificate secured such deed, the contention of appellant might be correct, but we are not called upon to pass upon that question in the instant case.

It is apparent that the trial cour-t, in sustaining the demurrers to the complaint, must necessarily have held that the appellant had no title or color of title sufficient to give the court jurisdiction to enjoin the alleged placing of a cloud upon his title, if any he had. It has been held that the statutes regulating tax sales usually require as an essential of the sales a proper certificate of sale to be executed at the time of the sale, or within a reasonable time thereafter, which must recite the fact of sale, the name of the purchaser, etc., as well as a description of the property sufficient to identify the premises, and such other matters as the particular statute may describe, and that the effect of the certificate is not to pass title to the land, but simply to place in the hands of the purchaser evidence that he is entitled to the execution of a deed, or to receive the money necessary to effect redemption.

[2] In the case of Keller v. Hawk, 19 Okl. 407, 91 Pac. 778, it was held that:

“A tax certificate, under the law, does not pass title to the land sold. It is a written certification by the county treasurer of the facts regarding the sale of real estate for taxes, and is the legal evidence u.pon which the holder thereof is, at the proper time, entitled to a deed, or to the redemption money.”

To the same effect is the holding in the case of Kohle v. Hobson, 215 Mo. 213, 114 S. W. 952.

It is our opinion that under the statutes of this state a tax certificate does not pass title. See, also, Black on Tax Titles, § 504.

Appellant’s contention is evidently based upon the assumption that his acquisition of the later tax certificate under the tax sale for taxes assessed against the property in 1914, coupled with his payment of ■ taxes assessed against the property for subsequent years, gave him a title superior and paramount to all other titles or liens, and cut off all prior liens. We are of the opinion that his error in this connection is due to the fact that he has assumed that he acquired a title by his tax certificate in connection with the delinquent tax sale for the year 1914. He did not in fact acquire a title to the property in question, but a tax lien thereon. In conclusion we would point out that the tax sales under which appellee claims were had prior to the amendatory act of 1915 (chapter 78). This act, however, did not change the provisions of section 5502, Code 1915, in the matter o£ the lien created, and the rights of the appellee Bryan in this respect were fully protected under section 5502, in effect at the time of the tax sales in question.

It necessarily follows that the appellant is in error in his contention, and that the judgment of the trial court was^ correct, which judgment is therefore affirmed; and it is so ordered.

Parker and Roberts, J.J., concur.