Zaring v. Lomax , 53 N.M. 273 ( 1949 )

I agree with the legal principle pronounced by the majority, namely, "The rule is universal that it is the duty of the life tenant to pay the taxes on all the property in which he holds a life interest." There is no question that a person standing in a fiduciary relationship towards his ward cannot suffer the realty to be sold for delinquent taxes and then purchase the same either from the state or from one who owes a duty to his remainderman. The policy of the law prohibits such a transaction, because he could not indirectly acquire that which the law would not allow him to acquire directly. Was Zaring, the plaintiff, a life tenant who owed a duty to the defendant? The record discloses the following facts: The lot in question was owned by Lilly B. Wisner at the time of her death on or about March 1, 1938. She left a will, which was duly admitted to probate in Guadalupe County, New Mexico. It provided that the property involved in this action be devised for life to her son William C. Baker, with remainder in fee to the children and issue of his body. This devise reads as follows:

"Second. I give and bequeath to my beloved son William C. Baker a life estate in all my property both real and personal so that he may enjoy the use and income from the same during his lifetime, and upon his death it is my wish and will that all of my said property shall go in fee to his children, issue of his body, in equal parts, share and share alike."

The son married one Dorothy Maxine Baker Lomax, and as a result thereof the defendant, Robert Lee Baker, was born in November, 1939. In 1942, they were divorced, and at the time of the hearing, the whereabouts of William C. Baker were unknown to any one. On January 9, 1939 William C. Baker and his wife conveyed by warranty deed this lot to W.S. Fluitt and wife, which made no mention of the life estate. On December 4, 1939, this lot was sold by the County Treasurer of Guadalupe County to one C.J. Webb, a total stranger, under Tax Sale Certificate No. 1232, for the delinquent taxes of 1938. Thereafter, on June 1, 1942, pursuant to the sale, the county treasurer made, executed and delivered Tax Deed No. 328 to Mr. Webb for the taxes, penalties, interest and costs, more than two years having elapsed since the sale and the property not having been redeemed. Fluitt allowed this property to be sold for delinquent taxes during the time he held it as a life tenant and thereafter failed to redeem it before the issuance of the tax deed to Webb, as provided for by Section 76-713, 1941 Compilation. The time for asserting such statutory right thus expired and the right of redemption was lost. Hood v. Bond, 42 N.M. 295, 77 P.2d 180; Aragon v. Empire Gold Mining and Milling Co., 47 N.M. 299, 142 P.2d 539; Eigner v. Geake, 52 N.M. 98, 192 P.2d 310. Section 76-713, supra, provides as follows:

"Property sold under the provisions of this act may be redeemed by the owner or by any person having a legal or equitable right therein at any time before two (2) years from the date of the sale * * *." (Emphasis ours.)

If Fluitt had paid the taxes, he would have been doing what the law required him to do, in that he had the duty to pay same. If he had purchased the tax title or purchased it from Webb, after he suffered the property to be sold for delinquent taxes, he could acquire no interest adverse to his remainderman, and in fact would have merely been redeeming the taxes. If he had sold the property thus acquired from the county or Webb to the plaintiff, plaintiff would have received no better title than he himself had. But here it cannot be said that the plaintiff owed any duty to the defendant (appellee). Under the facts and circumstances of this case I find no logical reason to hold that Zaring's purchase of this lot from Webb, the tax title owner, and a stranger to the parties, was only redeeming the property for the benefit of the defendant.

On October 1, 1945, exactly three years and four months after the tax deed had been issued to C.J. Webb, the Fluitts purported to convey this lot by warranty deed to Zaring. This was an idle gesture and nullity, since any interest that the Fluitts might have had, was extinguished by the tax deed. There being no dispute as to the validity of the tax deed, upon its delivery and recordation, it clothed C.J. Webb, not merely with the title of the person who had been assessed for the taxes and who had neglected to pay them, but with a new and paramount title in the land, under the independent and complete grant from the sovereign, which extinguished all prior titles, as well as all equities arising out of them. The sale operated in rem, therefore, all parties were bound by it. Alamogordo Improvement Co. v. Hennessee, 40 N.M. 162, 56 P.2d 1127; Alamogordo Improvement Co. v. Prendergast, 43 N.M. 245, 91 P.2d 428, 122 A.L.R. 1277. Surely under the provisions of our tax statutes it cannot be said that the county and the county's vendee took the legal title subject to outstanding claims.

On November 28, 1945, C.J. Webb and his wife, the tax title owners, by quitclaim deed conveyed their interest to the plaintiff. This court has declared that a tax title is not derivative but original, is not limited to passing title of him whose name the land is taxed, but divests all interest in the land and vests in the grantee an independent and paramount title. The title of C.J. Webb, derived from a valid tax sale deed, was an indefeasible title, good as against the life estate of the Fluitts and their remainderman, as well as against the whole world. No collusion or fraud having been alleged or proven, the title acquired by the appellant from C.J. Webb should prevail.

The appellee's claim of interest was divested by the tax deed, and the court erred in holding otherwise. The judgment should be reversed, and the cause remanded, with directions to enter judgment in favor of the plaintiff. For the reasons stated, I dissent.

COMPTON, J., concurs.