NEW MEXICO REALTY CO. V. SECURITY INV. & DEV. CO., 1921-NMSC-067, 27 N.M. 664, 204 P.
984 (S. Ct. 1921)
NEW MEXICO REALTY CO.
vs.
SECURITY INVESTMENT & DEVELOPMENT CO.
SUPREME COURT OF NEW MEXICO
1921-NMSC-067, 27 N.M. 664, 204 P. 984
Appeal from District Court, Santa Fe
County; Holloman, Judge.
On Motion for Rehearing October 31,
1921. Second Motion for Rehearing Denied February 27, 1922.
Suit by the New Mexico Realty Company
against James W. Norment and another. Judgment for the plaintiff, and the
defendant Security Investment & Development Company appeals.
(
1) As a general rule, in a suit to quiet title, the
plaintiff must recover, if at all, upon the strength of his own title and not
upon the weakness of that of his adversary. P. 667
(
2) Where reliance is placed solely upon paper title, the
plaintiff must trace his title to the government or a grantor in possession. P.
668
(
3) Where both parties trace title to a common source, it is
sufficient that the plaintiff connects his title to the common source. P. 668
J. H. Crist and J. W. Norment, both of
Santa Fe, for appellant.
Frank W. Clancy, of Santa Fe, for
appellee.
Parker, J. Roberts, C. J., and Raynolds,
J., concur.
{*665} {1} OPINION OF THE COURT This is a suit to quiet
title to a number of lots and a tract of land in Santa Fe county, brought by
the New Mexico Realty Company against James W. Norment and the Security
Investment & Development Company.
{2} The complaint was in the
conventional form. The defendants answered denying the title of plaintiff in
said property and alleging that the said property was assessed for taxes for
the year 1904; that a levy thereon was made; that the taxes became delinquent
and a judgment was rendered for the delinquency; that on April 7, 1906, the
property was duly sold at tax sale to the county of Santa Fe, duplicate
certificate being delivered to James W. Norment on December 5, 1910, and duly
recorded; that a tax deed for said property was delivered by said county to
Norment on February 11, 1911; that subsequently a suit was brought by Norment
against the county of Santa Fe, wherein it was decreed that the title acquired
by Norment was a new, independent, and superior and paramount title and
extinguished all {*666} other title and
liens; that the said decree was affirmed in the Supreme Court of the state, and
that on November 25, 1914, Norment conveyed all his right, title, and interest
in said premises to the Security Investment & Development Company, Norment
disclaiming any right or title in said premises thereafter.
{3} The trial court found
that the said property was assessed to Phillip E. Moisson, for the year 1904;
that said Moisson then owned said property, and that the tax proceedings
mentioned in the answer occurred as alleged therein. It also found that
Moisson, through his agent, L. Bradford Prince, on June 28, 1907, tendered to
the county treasurer the "exact amount of taxes on said property levied in
1904, that is to say, the sum of $ 49.59, and said officer refused to accept
the same in payment of said taxes." The court concluded as a matter of law
that the tender aforesaid was equivalent to actual payment, and consequently
the acts of the county in selling the land for alleged delinquent taxes for the
year 1904 was illegal and void. From a judgment quieting the title of said
property in the plaintiff, the Security Investment & Development Company
has perfected this appeal.
{4} The property involved in
this suit is fractional lots 31, 32, 33, 34, 35, and 89 and full lots 30, 61,
62, 63, 85, 86, 90, 91, 92, 93, 96, and 97, "map of valuable building lots
adjoining the railroad depot, Santa Fe, N.M. 1880," and a tract of land
called the "hillside property" in the northern part of the city of
Santa Fe. The paper title introduced in evidence by the appellee discloses the
following: Warranty deed, William Bradley to Phillip E. Moisson, dated June 1,
1898, for all the lots above described; quitclaim deed of said Moisson to
appellee, dated April 10, 1905, for the above-described lots; deed from Manuel
Valdez and wife to Phillip E. Moisson, dated
{*667}
1890, for tract 1 of the Hillside property and deed for tract 2 of said
Hillside property from and to same parties, dated 1891. This entire tract was
conveyed to appellee by Moisson by deed dated April 10, 1905. From recitations
made in some of the foregoing deeds it would appear that on September 25, 1848,
Ramon Martinez and wife deeded tract 1 of the Hillside property to Antonio
Valdez, and that the grantee thereof was dead at the time Manuel Valdez and
wife conveyed the Hillside property to Phillip E. Moisson in 1890 and 1891;
that the city of Santa Fe quitclaimed its title in said property by its deed to
Moisson, dated 1901, and that said city quitclaimed its title to lots 30 to 35,
inclusive, to Moisson May 30, 1901.
{5} It will be observed that
the source of title of Ramon Martinez and wife, to the tract numbered 1 of the
Hillside property, is not disclosed, nor is the source of title of Manuel
Valdez to both tracts of said Hillside property anywhere disclosed. It also
appears that the origin of title of William Bradley, as well as the city of
Santa Fe, is nowhere disclosed. In other words, the paper title introduced in
evidence by appellee to prove its title to the premises fails to show that
appellee's mediate or immediate grantors were ever vested with the legal title
to this property or to any of it, and the question arises as to whether under
such circumstances the appellee, plaintiff below, made out a case entitling it
to a decree quieting its title to said premises.
{6} It is settled beyond
further controversy in this jurisdiction that as a general rule in a suit to
quiet title the plaintiff must recover, if at all, upon the strength of his own
title and not upon the weakness of that of his adversary. Union Land &
Grazing Co. v. Arce,
21 N.M. 115, 124,
152 P. 1143.
{7} There is no evidence in
the record that the plaintiff,
{*668} appellee,
or any of its privies, were in possession of the property in dispute. The
doctrine laid down in Holthoff v. Freudenthal,
22 N.M. 377,
162 P. 173, that
possession under a deed from a grantor in possession is sufficient evidence of
title to maintain the action, is therefore inapplicable here.
{8} It is a general rule that
where reliance is placed solely upon paper title, the plaintiff must trace his
title to the government or a grantor in possession. 32 Cyc. 1331; 10 Enc. of L.
484; People's Bank v. West, 67 Miss. 729, 7 So. 513, 8 L. R. A. 727.
{9} In Bauer v. Glos, 236
Ill. 450, 86 N.E. 116, the court said:
"The only evidence of appellee's ownership was a
master's deed to Henry Bauer * * * and subsequent deeds from Henry Bauer * * *
to Albert Bauer, and from Albert Bauer to appellee. The premises were
unoccupied, and there is no evidence of title or possession in appellee or her
grantors, or any of the parties to the decree by virtue of which the master's
deed was made. A deed for land without proof of possession or title in the
grantor is not proof of title in the grantee.'
{10} In Madler v. Kersten,
170 Wis. 424, 175 N.W. 779, the court said that in actions to remove a cloud on
title to land, plaintiff not tracing title to the government, proves no title
by showing a deed from one not shown to have been in possession of the
property. To the same effect is Rockey v. Vieux, 179 Cal. 681, 178 P. 712.
Numerous cases support this doctrine, but the few cited here will suffice.
{11} A different rule
prevails, however, where both parties claim title under a common source. In
such cases the rule is that it need not be alleged that the grantor had title,
and neither party will be permitted to deny it; it being sufficient if
plaintiff
{*669} connects his title with
that of the common grantor. 17 Enc. P. & P. 330; Rockey v. Vieux, supra; 32
Cyc. 1331; 5 R. C. L. "Cloud on Title," § 48.
{12} In Eickhoff v. Scott,
137 Ark. 170, 208 S.W. 421, the court said:
"Appellees are not in a position to attack
appellants' tax title because they trace their title to the same source, and an
attack upon appellant's title is in effect an attack on the source of their own
title. It is true, in an adversary suit, that the plaintiff must recover on the
strength of his own title, and not the weakness of the defendant's title.
[Authorities.] This rule is applicable where the parties claim title from
independent sources, and has no application where the parties trace their
respective titles to a common source. Where the parties trace their title to a
common source, the one must prevail who has the superior equity."
{13} See, also, Charles v.
White, 214 Mo. 187, 112 S.W. 545, 127 Am. St. Rep. 674, 21 L. R. A. (N. S.)
481; Stephenson v. Austin, 217 Mo. 355, 116 S.W. 1090; Mo. St. Life Ins. Co. v.
Russ (Mo. Sup.) 214 S.W. 860; City of Ft. Bragg v. Brandon (Cal. App.) 41 Cal.
App. 227, 182 P. 454; and Buchanan v. St. L. & M. R. Co, 253 F. 698, 703,
165 C. C. A. 292.
{14} As the parties hereto
traced their title to a common source, viz., Moisson, the plaintiff below was
not obliged to prove title in any predecessor of Moisson. The court found as a
fact that Moisson was the owner of the property in 1904, and appellant made no
objection thereto. Nor at the close of plaintiff's case in chief did appellant
move for a nonsuit upon the ground that the plaintiff was required to prove
title beyond the common source.
{15} The appellee proved that
in the latter part of June, 1907, Moisson tendered to the county treasurer $
49.59 as full payment of taxes levied on the property in 1904; but the tender
was refused. From the tax rolls it appears that the land was sold to the
{*670} county of Santa Fe on April 7, 1906,
for the delinquent taxes of 1904, and that the duplicate certificate of sale
was assigned to Norment on December 5, 1910. The judgment against the land for
the delinquent taxes of 1904 disclosed that the tax was $ 49.59, with penalty
of $ 2.48 and advertisement costs of $ 2.75, and the appellant contends that
the tender was bad because not for the full amount of the taxes, penalties, and
costs. The solution of the proposition depends upon the construction of chapter
65, Laws 1907. Section 1 of the act provided:
"That all accrued penalties and interest upon
taxes now or heretofore in this year delinquent, shall be remitted upon all
such taxes which have been or shall be paid on or before the first day of July,
A. D. 1907. Provided, however, that in all cases where taxes are now the
subject of litigation the time for such payment as aforesaid is extended only
to the first day of July, 1907, and if not paid on or before such first day of
July, no abatement of interest or penalties shall thereafter be made."
{16} To recapitulate: The
taxes were assessed in 1904; became delinquent in 1905; judgment rendered for
delinquency January 26, 1906; sold to the county at tax sale on April 7, 1906;
tender of "taxes" made in June 1907 and refused, and duplicate
certificate of sale assigned to Norment in 1910.
{17} The tax was put in
judgment, as heretofore mentioned, and whether the trial court was correct in
applying the statute of 1907 with respect to the tender of taxes made by the
appellee depends upon whether the judgment merged the "tax" or not.
If it did, the statute was without application, because it spoke only to
"taxes" as such, and not to judgments which may have been rendered on
account of delinquent taxes.
{18} We have found no case in
point on this proposition, but the general law of merger applies. In 1 Freeman
on Judg. (4th Ed.) it is said:
"The entry of a judgment or decree establishes in
the most {*671} conclusive manner and
reduces to the most authentic form that which had hitherto been unsettled, and
which had, in all probability, depended for its settlement upon destructible
and uncertain evidence. The cause of action thus established and permanently
attested is said to merge into the judgment establishing it, upon the same
principle that a simple contract merges into a specialty. * * * The cause of
action, though it may be examined to aid in interpreting the judgment, can
never again become the basis of a suit between the same parties. It has lost
its vitality; it has expended its force and effect. * * * It 'is drowned in the
judgment' and must henceforth be regarded as functus officio." Section
215.
"The weight of authority in the United States
shows that whatever may be a cause of action will, if recovered upon, merge
into the judgment or decree. * * * It may even be merged by a statutory
judgment."
"A person often has the privilege of pursuing either
of several forms of action to obtain legal redress for a single wrong. Whenever
he resorts to any action in which it is competent for the court to award him
full compensation for the wrong of which he complains, and prosecutes such
action to final judgment, the wrong merges in the judgment and thereafter there
can be no further recovery therefor. * * *" Section 216.
{19} See, also, 15 R. C. L.
"Judgments," § 236 et seq.; 23. Cyc. 1108 et seq. In the last-cited
work it is said that all the peculiar qualities of the claim are merged in the
judgment.
{20} For most purposes the
judgment which merges the claim is to be regarded as a new debt. 1 Freeman on
Judgments (4th Ed.) § 217; R. C. L. supra § 247; 20 A. & E. Enc. Law, p.
599 et seq.
{21} After the rendition of
the judgment against the land in controversy, there were no longer any
"taxes" for 1904 due to the state or county chargeable against the
land; the judgment superseding the tax, and the amount thereof being ordered
realized by a judicial sale of the premises. The act of 1907 was not
sufficiently broad to cover the situation existing in the case at bar, and the
trial court erred in applying the statute.
{22} For the reasons stated
the judgment of the trial
{*672} court
will be reversed, and the cause remanded, with directions to set aside the
judgment and to proceed thereafter as the parties shall elect, and it is so
ordered.
{23} By motion for rehearing,
learned counsel for appellee suggests that the court was in error in holding
that the taxes for 1904 were merged by judgment and that chapter 65, Laws 1907,
therefore did not apply.
{24} Counsel states that in
contemplation of law all taxes prior to 1906 had been merged in judgments prior
to the passage of chapter 65, Laws 1907, so that if the construction placed by
the court upon that chapter be correct there could be no room for the operation
of the statute, except possibly for the first half of the taxes for 1906. Our
attention is called also to section 2 of the act which provided substantially
that "all delinquent taxes" for the years 1901 to 1905, inclusive,
should be distributed in a certain manner. Counsel contends that a clear
legislative intent is disclosed to permit of a payment of taxes, without
penalty and interest, whether the amount of such taxes be included in a
judgment or not, and on further consideration of the matter we are satisfied
that counsel is correct in the contention made.
{25} In the former opinion we
did not consider the sufficiency of the tender because it was rendered
immaterial by the decision respecting the applicability of chapter 65, Laws
1907, to taxes which had been placed in judgment.
{26} Counsel for appellant
argued that the tender of
{*673} June
27, 1907, was insufficient because it did not include any sum imposed as costs.
The tender was for $ 49.59, the exact amount of taxes levied on the property
for 1904. The rolls for that year showed the imposition of a penalty of $ 2.48
on account of the failure to pay the taxes when due, and section 10, c. 22,
Laws 1899, the law in force at the time, required the taxing authorities to
impose that penalty. That sum was, however, remitted by chapter 65, Laws 1907,
when its provisions were invoked. The additional sum of $ 2.75, described as
costs of advertising, was charged on the rolls against said property for said
year. The appellant contends that because the tender did not include that sum
it was bad.
{27} The statute, chapter 65,
Laws 1907, provided for the remission of all "accrued penalties and
interest," and the question now is whether it was necessary to pay or
tender the amount charged as advertising costs in order to be relieved under
the provisions of the act.
{28} Under the law of 1899,
if taxes were not paid within 90 days after delinquency, it became the duty of
the collector to publish a delinquent tax list of owners of property upon which
the taxes amounted to not less than $ 25; the list to state the "amount of
taxes, penalties and costs due." The collector was required to append to
the list and publish a notice that he would in a time stated apply for judgment
against the lands and personal property described in the list, "with costs
and penalties" and for an order of sale, and sell said property against
which judgment may be rendered for the taxes, penalties, and costs due. Upon
the completion of the publication and notice, the district attorney was
required to file an omnibus suit against the property described in the
publication, and where judgment was rendered it was to include the amount
stated
{*674} in the publication,
"together with penalties, interests and costs," and in entering up
such judgments the clerk was required to add to the judgment amount a sum equal
to 5 per cent. of the amount due, "which five per centum shall be the
costs of such proceeding" to be paid over to the court fund of the county.
Sections 15, 17, 18, and 20, c. 22, Laws 1899.
{29} It will be observed that
the law required the imposition of costs of publication of the delinquent tax
list and also the cost of the omnibus suit brought to enforce payment of the
tax. The statute fixes the amount of the costs of suit, but does not fix the
publication costs.
{30} It therefore appears
that the cost of publication of the delinquent tax list became a charge against
the property in suit here, unless the statute authorized its remission upon
payment of the taxes proper the tender was insufficient.
{31} The word "penalty,"
as used in the staute, clearly speaks to the arbitrary amount to be added to
the tax proper imposed by section 10, c. 22, Laws 1899, as a punishment for
failure to pay the tax within the time specified by the statute. This amount is
added to the tax and becomes a constituent part of it. Our conclusion with
respect to these matters requires no consideration as to the usual meaning
attributed to the word penalty.
{32} The word
"interest" in the statute was evidently used inadvertently. Prior to
1899, 25 per cent. per annum was added as interest to delinquent taxes. Section
4066, C. L. 1897. So far as we have been able to ascertain, from 1899 to 1913
taxes did not draw interest, although we find the word "interest"
appearing in the act of 1899 at several places.
{33} It is elemental that
"a tender to be sufficient in
{*675} law
must be in amount at least equal to the amount due." 26 R. C. L.
"Tender," § 20.
{34} Under chapter 65, Laws
1907, a tender of the delinquent tax amount, including the legally assessed
cost of publishing the delinquent tax list, must be made in order to entitle
the party to a remission of the penalty imposed for the nonpayment of taxes,
and a tender of an amount less than that required by law is unavailing.
{35} The judgment of the trial
court is therefore reversed, and the cause remanded, with instructions to set
aside the judgment and thereafter proceed as the parties shall elect, and,