{ "id": 1558007, "name": "EAVES v. LOWE et al.", "name_abbreviation": "Eaves v. Lowe", "decision_date": "1931-11-17", "docket_number": "No. 3626", "first_page": "610", "last_page": "616", "citations": [ { "type": "official", "cite": "35 N.M. 610" }, { "type": "parallel", "cite": "5 P.2d 525" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "32 N. M. 182", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1553067 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/32/0182-01" ] }, { "cite": "33 N. M. 535", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1554429 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/33/0535-01" ] }, { "cite": "32 N. M. 431", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1553033 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/32/0431-01" ] }, { "cite": "203 P. 543", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "27 N. M. 511", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842692, 8842727 ], "opinion_index": 0, "case_paths": [ "/nm/27/0511-01", "/nm/27/0511-02" ] }, { "cite": "35 N. M. 293", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557976 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/35/0293-01" ] }, { "cite": "297 P. 145", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "35 N. M. 345", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557971 ], "opinion_index": 0, "case_paths": [ "/nm/35/0345-01" ] }, { "cite": "35 N. M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557920 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/35/0286-01" ] } ], "analysis": { "cardinality": 561, "char_count": 11547, "ocr_confidence": 0.716, "pagerank": { "raw": 2.754346559007153e-07, "percentile": 0.832987367217162 }, "sha256": "7e940e5d5c9a6e16f3d81de1a05a8fc70abd9df12112cf23ace41ae77ccc2189", "simhash": "1:27d60a69d7f44ed8", "word_count": 2003 }, "last_updated": "2023-07-14T22:18:25.112313+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BICKLEY, C. J., and HUDSPETH, J\u201e concur.", "PARKER and SADLER, JJ., did not participate." ], "parties": [ "EAVES v. LOWE et al." ], "opinions": [ { "text": "OPINION OF THE COURT\nWATSON, J.\nThis suit involves the validity of a tax sale and certificate. The plaintiff, appellee here, by her amended complaint, alleged that she was the owner in fee simple of \u201cLot 21, Block 6, of the original townsite of Lovington, New Mexico\u201d; that defendant Lowe had purchased from defendant the county treasurer, a tax certificate \u201cpurporting to be a tax sale certificate for said lot above described for the taxes for the year 1923,\u201d and had thereupon served notice upon plaintiff of intention to apply for a tax deed \u201cto said land based on said certificate,\u201d whereupon plaintiff had offered to pay to defendant county treasurer the taxes due \u201con said lot\u201d and had offered \u201cto redeem said lot\u201d; that defendant the county treasurer had refused to accept the tender and had advised plaintiff of his intention to make a deed to defendant Lowe \u201cfor the said lot\u201d; that such tax deed will constitute a cloud on the title \u201cin and to said lands\u201d and would serve to defeat plaintiff\u2019s \u201cright of redemption in and to said lot\u201d ; that the said tax certificate is wholly void (for numerous reasons specifically set forth); that \u201csaid lands above described being taxable, as provided by law, this plaintiff was, and is, due the state of New Mexico the said taxes therefor for the year 1923\u201d; and that plaintiff had the right, within thirty days after service of said notice, to redeem \u201csaid lands\u201d and had made valid tender of redemption.\nThe prayer was that defendant the county treasurer be required to accept plaintiff\u2019s tender, that 'plaintiff\u2019s title be quieted as against the claims of defendant Lowe, and that defendant the county treasurer be enjoined from issuing tax deed. Copies of the tax sale certificate issued to Lea county, of the assignment to plaintiff Lowe, of the judgment in the general tax suit for 1923, and of the court\u2019s order of sale, were attached to the complaint.\nDefendant answered the amended complaint denying the facts upon which were based the claim of invalidity of his tax sale certificate, and setting up that the defects relied upon were such as might have been raised in the general tax suit and were not there raised, nor raised within ninety days after rendition of judgment therein. By cross-complaint he alleged that he was the owner of the land in question in fee simple, and that defendant the county treasurer had refused to issue the tax deed to which he was entitled. He prayed that his title be quieted as against the claims of the plaintiff, and that defendant the county treasurer be required to execute and deliver a tax deed.\nAt the trial, when plaintiff sought to prove the defective proceedings, defendant objected that, under Laws 1921, c. 133, \u00a7 435, the validity of the tax sale could be attacked on no other ground than that \u201cthe taxes * * * had been paid before the sale, or that the property was not subject to taxation.\u201d Thereupon plaintiff took the position that these curative provisions of the act are applicable only in case the \u201cproperty is described in the original roll and delinquent tax roll for any year by such description as will serve to identify the same\u201d; and, being met with the contention that the amended complaint did not warrant any attack upon the description, obtained leave of court to amend her complaint and inserted this paragraph:\n\u201cThat said certificate of sale is void for the reason that there is no sufficient description of land therein to identify the lands\u2019 purported to be sold.\u201d\nThe trial court found that neither the assessment roll, the delinquent tax roll, the judgment in the tax suit, the report of sale, nor the tax certificate contained such description of the land described in the amended complaint as would serve in a deed to identify it so that title thereto would pass; that no sale of the property was ever had or held; that the plaintiff had made her tender more than three years after the date and record of the certificate, but within thirty days after the notice was served. He concluded as matter of law that the tax sale certificate was void, that it should be set aside, and that plaintiff was entitled to the further relief prayed for.\nThe decree quiets plaintiff\u2019s title, cancels the tax sale certificate, and enjoins the execution of tax deed. Defendant Lowe appeals.\nThe certificate in question was issued to the county December 9, 1924, for taxes delinquent for 1923. It was recorded the same date and recited a sale made November 10, 1924. It was assigned to appellant August 7, 1929, and the assignment recorded the next day.\nThe tender came too late. The period of redemption ended with \u201cthe expiration of three years from\u201d November 10, 1924. Williams v. Van Pelt, 35 N. M. 286, 295 P. 418; Knollenberg v. Mitchell, 35 N. M. 345, 297 P. 145.\nAppellee contends here, apparently for the first time, that the certificate is invalid because it follows the form outlined in Code 1915, \u00a7 5502, rather than the form suggested in Laws 1921, c. 133, \u00a7 441. The point is without merit. Baker v. Johnson, 35 N. M. 293, 295 P. 421.\nThis leaves only the question of the .description. On the particular line of the assessment roll it appears thus: \u201cLot 21, B. 6, Orig.\u201d This is in a column headed \u201cFractions or other Subdivisions.\u201d The page is headed \u201cSchool District No. 1, City, Name of Postoffice serving Lovington, Assessment Roll for 1923, State of New Mexico, 1923.\u201d\nA sufficient description of the property to be assessed has been held to be an essential of taxation. Manby v. Voorhees, 27 N. M. 511, 203 P. 543.\nLaws 1921, c. 133, \u00a7 435, recognizes this principle and does not attempt to cure proceedings defective in the matter of description. It seems to contemplate \u201csuch \u25a0description as will serve to identify\u201d the property. It is claimed that this description does not so \u201cserve.\u201d\nBut section 203 of the same act must also be considered. It prescribes \u201ca description of all real estate, such as would be sufficient in a deed to identify it so that title thereto would pass.\u201d\nThus we have present in the same act two statutory expressions as to sufficiency of description to which this court has attributed somewhat different meanings. The first mentioned was contained in Laws 1899, c. 22, \u00a7 25, disappeared in 1913 when chapter 84 was adopted, and reappeared in Laws 1921, c. 133, \u00a7 435. It has been the view of this court that under that provision the description must be sufficient in itself to identify the property. King v. Doherty, 32 N. M. 431, 258 P. 569; Security Investment & Development Co. v. Gross, Kelly & Co., 33 N. M. 535, 271 P. 95. Under the provision last mentioned we have held that.if the description contains the means of identification, extrinsic evidence may be resorted to for the identification itself. State v. Board of Trustees of Las Vegas, 32 N. M. 182, 253 P. 22.\nSo appellee relies upon Laws 1921, c. 133, \u00a7 435, and upon King v. Doherty and Security Investment & Development Co. v. Gross, Kelley & Co., supra, as authority that the description is fatally defective; while appellant relies on section 203 of the same act and upon State v. Board of Trustees of Las Vegas, supra, in urging that the description affords the means of identification and may be aided by extrinsic evidence.\nAppellee contends that a defective description presents a fundamentally different question when it appears in a deed than when it is found in a tax assessment. In the one case parties have made a contract. The object is to ascertain their intention. In the other case the description is the foundation of a proceeding in invitum. The principle of notice and of due process may be involved. It will not do to permit the assessor, by testifying an intent, to effect an assessment of which the tax roll does not give notice.\nAppellee contends also that there is no real difference between \u201csuch description as will serve to identify\u201d and such description \u201cas would be sufficient in a deed to identify it so that title thereto would pass.\u201d In either case he says it is the \u201cdescription\u201d which must \u201cserve\u201d or \u201cbe sufficient\u201d to identify the property.\nWhether we may have been too strict in our holdings that, under Laws 1899, c. 22, \u00a7 25, and Comp. Laws 1897, \u00a7 4032, the description appearing on the assessment rolls may not be aided by extrinsic evidence, is not the question here. We have distinguished the two provisions and have held that Code 1915, \u00a7 5437 (Laws 1913, c. 84, \u00a7 2), being the same provision found in Laws 1921, c. 133, \u00a7 203, permits extrinsic evidence in aid of identification.\nIt is hardly to be supposed that the Legislature intended to introduce into a single tax act two different statutory measures of the sufficiency of the description; the one to guide the property owner in making his return; the other to guide the courts in deciding whether the owner had forfeited his property. Such description as will satisfy the requirement of section 203 (as to .returns) must, we think, be held sufficient under section 435.\nSo we conclude that the sufficiency of this description is not to be tested by the decisions interpreting Comp. Laws 1897, \u00a7 4032, and Laws 1899, c. 22, \u00a7 25. The description, though on its face uncertain, may be aided by extrinsic evidence, which, by means of data furnished by the description itself, will resolve the uncertainty.\nIt remains to apply the rule to this case. We think it would have been competent to prove that, as used in this roll, the abbreviation \u201cB\u201d means \u201cBlock,\u201d and the abbreviation \u201cOrig.\u201d means \u201cOriginal Townsite.\u201d We cannot doubt also that it would be competent to prove that the \u201ccity\u201d located in school district No. 1 of Lea county and within the service of the Lovington postoffice, is Lovington. It cannot be doubted that if appellee had desired to pay her taxes, she could easily have identified her property upon this tax roll.\nThe only extrinsic evidence which was actually tendered was that Lovington was located in school district No. 1 of Lea county. Appellee contends that even if extrinsic evidence had been admissible, this was not sufficient. That, however, is not the point. Under the pleadings and procedure recited, the judgment is made to rest upon the erroneous proposition that the description is intrinsically fatally defective; not that appellant, carrying the burden of proof, failed to identify the property described in his tax sale certificate as the same property described in the complaint. Appellee did not see fit to stand upon her own title, leaving appellant to assert and prove his. She set up appellant\u2019s claim of title and assumed to show that it was void because of a fatal and inherent defect in the description.\nWe are not disposed, however, upon the evidence before us, to approve the identification as complete so as to put the trial court in error for having refused relief under the cross complaint. We can scarcely doubt that the only original townsite which could be described as a city located within school district No. 1 of Lea county, and within the service of the Lovington postoffice, is the townsite of Lovington. We conclude, however, that it is proper to leave that question of fact to the decision of the trial court.\nThe judgment will be reversed, and the cause remanded with a direction tO' grant a new trial. It is so ordered.\nBICKLEY, C. J., and HUDSPETH, J\u201e concur.\nPARKER and SADLER, JJ., did not participate.", "type": "majority", "author": "WATSON, J." } ], "attorneys": [ "T. A. Whelan, of Lovington, for appellant.", "Tom W. Neal, of Lovington, for appellee." ], "corrections": "", "head_matter": "[No. 3626.\nNov. 17, 1931.]\nEAVES v. LOWE et al.\n[5 P. (2d) 525.]\nT. A. Whelan, of Lovington, for appellant.\nTom W. Neal, of Lovington, for appellee." }, "file_name": "0610-01", "first_page_order": 638, "last_page_order": 644 }