Duran v. Springer , 37 N.M. 357 ( 1933 )

On Rehearing. Seeking a rehearing, the appellant makes the contention that the running of the period of redemption was never set in motion until the assignment and recording of tax sale certificate on March 28, 1921, and that a tax deed issued on December 8, 1921, thereafter, was premature and void, citing Crawford v. Dillard,26 N.M. 291, 191 P. 513; Hudson v. Phillips, 29 N.M. 101,218 P. 787, and Lewis v. Tipton, 29 N.M. 269, 222 P. 661. These were cases dealing either with the 1913 act under which the period of redemption was three years from date of recording the certificate, or the 1915 amendment (Laws 1915, c. 78) fixing redemption at three years from date of the certificate. They merely hold and properly that a tax deed issued within the period of redemption is premature and void and confers no right.

In the present case the sale was October 3, 1918, for 1917 taxes under the authority of Laws 1917, c. 80, which fixes redemption at three years from date of sale. The tax deed issued December 8, 1921, more than three years after sale. The period of redemption clearly had expired before deed.

Appellant next contends that if, as we have held, Laws 1921, c. 133, § 455, applies to constitute the tax deed prima facie evidence, section 452 of the same act also applies to deny the right to issue tax deed until three years after recording the certificate, thus questioning the presumptive effect of one issued within that period. This is new argument, not urged upon us heretofore. The incongruity in the 1921 act in foreclosing redemption three years after sale, yet denying the right to deed until three years from recording certificate, has been observed by us. Timely objection to introduction of tax deed upon this ground in the court below no doubt would have resulted in its exclusion or at least in the trial court refusing to give it presumptive effect. But this objection to its admission or to its effect after admission was not there urged. It is urged here for the first time on rehearing.

If we eliminate the deed from consideration, we still have properly in the record a duly recorded tax sale certificate covering premises in dispute. It discloses a sale date leaving it beyond question that the period of redemption has long since expired plus an admission of appellant's counsel that no attempt at redemption has ever been made; on the contrary, the untenable position that the period of redemption has never begun to run. The certificate, if it be conceded as insufficient to sustain a decree for appellee, is at least a sufficient shield to resist one in appellant's favor. Witt v. Evans, 36 N.M. 365,16 P.2d 60.

The record then without the deed discloses appellee as holder of a tax certificate, duly recorded, under which the right to redeem has expired and against which but two defenses, payment of taxes and nonliability of the land to taxation, neither of which is claimed to exist, could be urged. The appellee, if the deed he has is invalid, may apply for a new one at any time.

In view of this situation, we are not disposed to consider this objection, not raised below and suggested for the first time on rehearing, as one sufficient to invoke our inherent power of intervention to correct fundamental error and prevent a miscarriage of justice within the doctrine of State v. Garcia,19 N.M. 414, 143 P. 1012.

The motion for rehearing will therefore be denied, and it is so ordered.

WATSON, C.J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur.