Kreigh v. State Bank of Alamogordo , 37 N.M. 360 ( 1933 )

I concur with Chief Justice WATSON in reversing the judgment.

I have consistently maintained that section 478 is a saving clause. Without section 478 the law is clear that, as to the validity of the assessment of land preceding the state's power to sell for nonpayment of taxes and the conservation of vested rights of the delinquent owner, such assessment, power to sell, and rights of the owner in the property sold, all are governed by the law in force at the time of the assessment, and the law is clear that, without section 478, the proceedings relating to the sale itself, the validity of the sale, or the rights acquired by the purchaser at sale, they are governed by the law in force at the time of such sale. That is the law anyway. Section 478 was not required to declare the law.

I contended that section 478 is a saving clause intended to preserve for the landowner from interference whatever rights or privileges theretofore existed — not to create new rights or privileges in the purchaser at tax sale.

Justices BICKLEY and SADLER denominate section 478 a saving clause. We have held that it is a saving clause. State Tax Commission v. Powers Scroggins, 29 N.M. 10, at pages 13 and 14,218 P. 186.

The usual function of a saving clause is not to create anything, but to preserve something from immediate interference. The purpose of section 478, apparently as I viewed it, was to save from the operation of chapter 133 all rights and privileges accrued to the owner of the property by the then existing laws.

However, to hold in accord with the view of Justice SADLER would be to hold that the delinquent tax collector did determine the rights and privileges of the parties by bringing suit and obtaining judgment under the mode of procedure outlined by the law in force at the time of the assessment. Justice SADLER holds that the suit in the instant case having been instituted under the mode of procedure outlined by Laws 1917, c. 80, and judgment obtained thereunder, then the tax deed has no prima facie effect in a suit to quiet title, whereas, had the suit been instituted and judgment obtained in the manner outlined by Laws 1921, c. 133, then section 455 steps in and gives the tax deed prima facie effect. The Legislature did not intend to vest the tax collecting authorities with any such power. The general result of the view adopted by Justice SADLER is the same as that of Justice BICKLEY, simply that, though section 478 be denominated a saving clause, it means nothing in suits instituted in the manner provided by Laws 1921, c. 133.

Realizing that the ultimate construction to be adopted by this court will be that of Justice BICKLEY, and the law will be definitely established in this state as expressed in Williams v. Van Pelt, 35 N.M. 286, 295 P. 418, 420, namely, "* * * We understand the rule to be, that the law in effect at the time of sale governs the matter of redemption and acquiring title after failure to redeem," I must yield my views to enable the litigants to have the law applied as the majority of this court ultimately construe section 478, and hold that the Legislature in its attempt to adopt what it supposed was a saving clause, due to the unfortunate phraseology employed, did not enact a saving clause.