(202 P.) The motion to set aside the judgment was in the nature of a petition, and was not supported by affidavits, nor verified by the district attorney. It is contended by the appellee it was properly denied for this reason. This case involves the construction of the Bateman Act, found in Code 1915, §§ 1227 to 1233, inclusive, which law is to the general effect that the expenses of a county cannot exceed the current funds of the year for which they are contracted, but that, if they are in excess of the funds for that year, they are to be paid pro rata. The present case, in our opinion, is controlled by a decision of this court, namely, James v. Board of Commissioners of Socorro County, 24 N. M. 509, 174 Pac. 1001, where it was sought to put into judgment a claim against Socorro county for current expenses. The answer in that case denied the liability of the county and the allegations of the complaint to the effect that the county had any ers, and payment thereof refused for lack of funds with which to pay it. Under such allegations the case of James v. County Commissioners, supra, applies, and no cause of action is stated. The judgment therefore should have been set aside. For the reasons above stated, the cause is reversed, with instructions to set aside the judgment; and it is so ordered. PARKER, J., concurs. DAVIS, J., did not participate in this de cision. (27 N. M. 362) FAIRCHILD v. CLOUDCROFT LUMBER & (Supreme Court of New Mexico. Oct. 31, 1921.) of (Syllabus by the Court.) sumed correct in absence of evidence. In the absence of the evidence, the findings the trial court will be assumed to be corFirst National Bank of Albuquerque v. Staley, 26 N. M. 659, 195 Pac. 514, followed. rect. funds for payment of the plaintiff's claim, Appeal and error 907 (2)-Findings preand set up, among other things, that the plaintiff was only entitled to his pro rata share of the funds. A demurrer to this answer was filed on the ground that the allegations set up in the answer did not render such indebtedness void, nor in any manner preclude the plaintiff from obtaining judgment against the defendant as prayed for in his complaint. This demurrer was overruled. On appeal this court affirmed the action of the lower court in overruling the demurrer and holding that Laws of 1909, c. 108, did not authorize the rendition of a judgment against a county for current expenses, nor operates as a repeal of the Bateman Act. Appeal from District Court, Otero County; Ed Mechem, Judge. Suit by S. W. Fairchild against the Cloudcroft Lumber & Land Company and others. Judgment for the defendants, and the plaintiff appeals. Affirmed. E. L. Medler, of El Paso, Tex., for appellant. Winter, McBroom & Scott, of El Paso, Tex., and E. R. Wright, of Santa Fé, for ap pellees. RAYNOLDS, J. This is a suit brought for an injunction and damages by the appellant, plaintiff below, praying for a temporary injunction restraining the defendant from operating and conducting a sawmill sances about the same, blocking the roads, destroying the fences, etc. The complaint prayed for an accounting as to plaintiff's damages and a permanent injunction. In the present case the complaint shows upon its face it was for current expenses of the year 1920, and it alleges the claim was duly allowed by the defendant board of county commissioners of the county of San Miguel on the 8th day of November, 1920, but was not paid for the reason that there were no funds with which the same could be paid. The appellant by one of his assignments of error attacks the judgment on the jurisdic-on plaintiff's lands, and for maintaining nuitional ground that the complaint does not state facts sufficient to constitute a cause of action. As has been often decided, the jurisdiction of the court may be challenged at any state of the proceedings. See Michael v. An order to show cause why the tempoBush, 195 Pac. 904; Baca v. Perea, 25 N. M. rary injunction should not issue as prayed 442, 184 Pac. 482; Goode et al. v. Loan Co., for was entered, and upon the rule to show 16 N. M. 461, 117 Pac. 856. Under James v. cause the defendants filed a verified answer. County Commissioners, 24 N. M. 509, 174 To certain parts of this answer the defend. Pac. 1001, we consider the assignment of er- ants interposed a demurrer, which was subror well taken; that is, that the complaint mitted to the court at the same time a heardid not state facts sufficient to constitute a ing was had upon the order to show cause cause of action, in that it shows on its face why temporary injunction should not issue. that the claim on which the judgment is Upon this hearing the plaintiff submitted in sought was for current expenses, had been support of his application for temporary inallowed by the board of county commission- junction affidavits, and the defendants sub For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes which was not reduced to writing and was not made a part of the record below, nor on appeal. mitted documentary evidence and oral proof, | the findings of the trial court will be assumed to be correct (First National Bank v. Staley, 26 N. M. 650, 195 Pac. 514), and that findings are conclusive if the record does not contain The court after submission of the matter a transcript of the evidence. Gradi v. Bacheto him took it under advisement, and subse- chi, 24 N. M. 100, 172 Pac. 188; Jahren v. quently entered a judgment denying the Butler, 20 N. M. 119, at 127, 147 Pac. 280; plaintiff's right to relief. In this judgment U. S. v. Lesnet, 9 N. M. 271, at 281, 50 Pac. the court found, first, that the defendants 321; Montoya v. Unknown Heirs, 16 N. M. had under the contract involved in the con- 349, at 376, 120 Pac. 676. troversy the right to erect and maintain sawmills and to use the mill sites for milling purposes; second, to log lumber from adjacent lands, now owned by the defendants, but not owned by them, or either of them, on February 4, 1918. From these findings the court concluded as follows: "And it is further ordered and adjudged that said motion and application of the plaintiff for a temporary injunction be, and the same hereby is, denied; and as under the conclusion of the court upon the findings so made, the plaintiff as a matter of law upon final hearing hereof would not be entitled to an injunction, the court upon the pleadings adjudges that the plaintiff's complaint is without equity, and defendants should have final judgment upon the pleadings." It may be that the complaint did state a cause of action, and, standing alone, contained grounds for equitable relief, but that is not the proposition before us. On trial upon the merits upon evidence submitted, as is shown by the record, the trial judge decided against appellant's contention, and under the decisions above cited and the general presumption in favor of judgments of the courts below, we are bound to assume that the decision was correct, in the absence of evidence in the record before us to the contrary. For the reasons above stated, the judgment below will be affirmed; and it is so ordered. ROBERTS, O. J., and PARKER, J., con From this judgment an appeal is prose-cur. cuted to this court. (27 N. M. 375) CHISHOLM et al. v. BUJAC. (No. 2576.) The controversy arose out of the construc tion of a warranty deed made by the defendant Cloudcroft Lumber & Land Company to the plaintiff Fairchild, in which the grantor reserved all oil and mineral rights and all merchantable timber upon said lands, to- (Supreme Court of New Mexico. Nov. 9, 1921.) gether with the rights of ingress and egress At the outset we are confronted with the proposition as shown by the above statement of facts that this is not a case in which judgment is granted to the defendant upon the pleadings, although the language of the trial court above quoted would seem to justify this view. The case as presented here is one which has been tried upon the merits, and after the submission of affidavits and oral testimony, the court has made findings of fact and conclusions of law. We are asked to review the conclusions of the court based on the findings of fact, but we have not before us the evidence submitted to the court on which these findings were made. It has been often held that in the absence of the evidence (Syllabus by the Court.) I. Taxation 734(1)—How tax laws under statute may be attacked stated. Tax sales made under the provisions of chapter 22 of the Laws of 1899 may be attacked only on the ground that the land was not subject to taxation or that the taxes had been paid. 2. Taxation 688-Effect of curative statute held to continue notwithstanding repeal. Although chapter 22 of the Laws of 1899 was repealed by chapter 84 of the Laws of 1913, the curative provisions of the former act continue in effect as to sales made under it. DAVIS, J. This is a suit to quiet title to certain land in Eddy county. The complaint is in the usual form, alleging title and pos For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (202 P.) session. The defendant answered by deny-, that it was not protected by the constitutioning the title of plaintiffs, and, by way of al guaranty against the impairment by the cross-complaint, set up ownership in him- state of the obligation of contracts or the afself, and asked that his title be quieted as fecting of vested rights, as would have been against the plaintiffs. the case if it had been held by an individuOn the trial of the case, plaintiffs proved al. In Pace v. Wight, 25 N. M. 276, 181 title to the property under a regular chain Pac. 430, this court considered the effect of of conveyances, except for an unredeemed the repeal of this law. The sale involved sale for taxes. The defendant claimed un- in that case had been made under the 1899 der the tax sale. The sole question for de law, which allowed a definite period of retermination here is, therefore, as to the va- demption, and the certificate was still owned lidity of the tax sale. The district court held by the county at the time of the enactment the tax sale to be valid and entered a decree of the 1913 law, which repealed the 1899 law quieting title in the defendant. and allowed a different period of redemption. The question there was as to which redemption period was applicable. The 1913 law was general in its terms, and on its face was applicable to all sales, whether theretofore or thereafter made. There being no constitutional objection so far as county property was concerned, it was held that the later law must control. Such was the plain The land in question was assessed for taxes for the year 1906 in the name of "unknown owners." The taxes not having been paid, due publication of notice was made, and it was sold to Eddy county, March 2, 1908. A certificate of sale to the county was issued on the same day, and was recorded in the tax sale records of the county on May 12, 1909. A duplicate certificate was as-legislative intent on the face of the enactsigned to the defendant, appellee here, July 1, 1919, and a tax deed was issued to him April 21, 1920. Appellants attack the tax sale upon various grounds, particularly because of the failure of the treasurer to keep a book of sales and his failure to make the entry, "Sold to the county," on the tax rolls opposite the unpaid tax. Appellants also contend that the order levying the tax was not entered on the records of the county commissioners, and that the seal required by statute was missing from the warrant for the collection of the taxes issued to the treasurer. All these matters are irregularities not affecting the jurisdiction to make the sale. [1] The sale in question was made under the provisions of chapter 22 of the Laws of 1899 then in force. Section 25 of that act provided that no sale made under its provisions could be invalidated by any proceedings except upon the ground that the taxes, penalties, interests and costs had been paid before the sale or that the property was not subject to taxation. There is no suggestion in this case that the taxes had been paid or that the property was not subject to tax. Under the letter of this statute, the objections made here cannot be considered. Such was the opinion of the district court. This section was construed and its provisions held binding in Straus v. Foxworth, 16 N. M. 442, 117 Pac. 831; Id., 231 U. S. 162, 34 Sup. 42, 58 L. Ed. 168; and again in Maxwell v. Page, 23 N. M. 356, 168 Pac. 492, 5 A. L. R. 155. It is unnecessary to repeat or amplify the reasoning in those opinions. ment. A different situation arises here. We are not dealing with two conflicting laws. We are considering a sale made in 1908, and the question is whether or not it was valid when made, and under the law then in force, not whether it would be valid if made in the same way now or under the Law of 1913. There must be but one answer. The law then in force provided that various acts should be done in connection with such sale, but likewise said, in effect and with certain exceptions, that their performance was not essential and their omission should not affect its validity. The attacks made on the tax sale now before us are all because of nonperformance of these matters which the law declared unessential. The sale was therefore good when made. The subsequent repeal of the 1899 law did not invalidate it. In Harris v. Friend, 24 N. M. 627, 175 Pac. 722, a somewhat similar question was presented. There a tax deed had been issued while section 4101, C. L. 1897, was in force. That section provided that the tax deed should be prima facie evidence of the regularity of the proceedings upon which it was based. This section was repealed in 1915 (Code 1915, p. 1665), but with a saving clause providing that it should remain in force as to contracts and events already affected. In discussing the result of this repeal this court said: "Under the statute in force at the time of the purchase of the tax certificate in question, the purchaser was entitled, at the expiration of three years from his purchase, to a tax deed, [2] It is true that all of chapter 22 of the made prima facie evidence of the regularity of the property not being redeemed, which was 1899 laws was repealed in 1913 by chapter the prior proceedings and of the fact that the 84 of the acts of that year. It is also true tax on the property had not been paid. This, it that at the time of the repeal the certificate is true, as we have stated, was but a rule of of sale was still held by Eddy county, so evidence, but it was of material advantage to the tax purchaser, and without the statute the purchase might not have been made. The statute being in force at the time of the purchase, while not a right, and relating only to the remedy, did apply to the purchase. In other words, it was a remedy or a rule of evidence applying to the right which he had initiated, and the Legislature, in adopting the saving clause, said that the statute should remain in force so far as it applied to a contract or event already affected by it." The opinion of this court in Cooper v. Hills, 23 N. M. 696, 171 Pac. 504, is not in conflict with the views here expressed. The sale there in question was not made until after the passage of the 1913 law, and was therefore governed by its provisions only. The district court was correct in holding that the irregularities claimed by appellants were not sufficient to invalidate the tax sale under the provisions of this statute, and its judgment should be affirmed; and it is so or dered. cur. This language is of value in this case as indicating the importance of such statutes to the purchaser at tax sales, and under the 1899 law counties were expressly declared to RAYNOLDS, C. J., and PARKER, J., conbe purchasers. The section of that law here under consideration entered into, qualified, and became a part of the sale and purchase of the land. And that section, differing from section 4101, above referred to, was more than a rule of evidence. It was a legislative declaration as to the effect of such a sale, the character of the right obtained under it, and the elements necessary to its validity. The question here is not one of constitutional law, but of legislative intent. Irre spective of the power of the state by subsequent legislation to impair or invalidate sales of property for taxes, certificates for which are still held by the county, an intention to do so is not shown by the mere repeal of the law under which the sale was made. In Pace v. Wight, supra, this court was dealing with acts to be performed after the passage of the 1913 law and the express granting of a new redemption period. Here we are dealing with a closed transaction, a sale completed long before the passage of the 1913 law, and we are of the opinion that it must be given the effect to which it was entitled under the law which authorized it, there being no later act by which it is modified. (27 N. M. 383) WOOD Y. CHISHOLM et al. (No. 2575.) (Supreme Court of New Mexico. 1921.) Nov. 14, Appeal from District Court, Eddy County; Brice, Judge. Action by Tom Wood against W. H. Chisholm and others. Judgment for plaintiff, and defendants appeal. Affirmed. J. B. Atkeson, of Artesia, for appellants. DAVIS, J. This case involves the validity of a tax title based upon a tax sale made at apirregularities as the sale considered in the case proximately the same time and with the, same of Chisholm et al. v. Bujac, 202 Pac. 126, decided at this term. The opinion in that case is decisive of this. The judgment of the district court is therefore affirmed; and it is so ordered. RAYNOLDS, C. J., and PARKER, J., con cur. (202 P.) (187 Cal. 352) (Supreme Court of California. Nov. 12, 1921. favor of the other defendants, Globe Grain & Milling Company, California Food Products Company, First National Bank of Calexico, and First National Bank of Los Angeles. Plaintiff appeals from that portion of the judgment in favor of the defendants upon the 1. Landlord and tenant 326(1), 328(1)—judgment roll containing a bill of exceptions Lessor held not to have lien on portion of crop. Where lessees were to raise cotton and deliver to lessor one-fourth thereof as rental, such one-fourth merely measured in cotton the amount of the rental to be paid, and lessor had no title to such portion of the cotton or in which the only specification of error is that the findings do not support the conclusions of law or the judgment. In appellant's briefs, however, the only portion of the judgment complained of is that in favor of the First National Bank of Los Angeles. Before stating the points relied upon by the parties, some additional facts should be stated. [1] Plaintiff leased 1,000 acres of land in Lower California, Mexico, to defendants R. G. Erskine and C. Curtis. The lessees were to raise cotton upon the land, and upon harvesting and ginning the same, agreed to render and deliver to the plaintiff one-fourth of the crop as rental. The cotton crop so raised amounted to 378 bales, 94 bales of which plaintiff claims that defendants wrongfully converted to their own use. It is evident 3. Appeal and error 169-Matter not raised that plaintiff's rights must turn upon the in trial court not considered. question of whether or not it had title to or a lien upon this 94 bales of cotton. The respondent claims that the 94 bales of cotton merely measured in cotton the amount of the rental to be paid by the tenants to the landlord, for which indebtedness they are liable; but this agreement created no title in the landlord to the cotton grown upon the land. This position is correct and is conceded to be so by the appellant. Clarke v. Cobb, 121 Cal. 595. 54 Pac. 74; Holt Mfg. Co. v. Thornton, 136 Cal. 232, 68 Pac. 708. [2] The complaint does not state a cause of action against the First National Bank of Los Angeles, for the reason that it fails to allege that plaintiff owned the 94 baies of cotton alleged to have been converted by the bank. This point is made for the first time Appeal from Superior Court, Imperial in respondents' final brief, filed after arguCounty; Franklin J. Cole, Judge. Action by the Imperial Valley Company against the Globe Grain & Milling Company and others. Judgment for defendants, and from an adverse judgment plaintiff appeals. Affirmed. Sloss, Ackerman & Bradley and Lloyd S. Ackerman, all of San Francisco, and Jas. W. Glassford, of El Centro, for appellant. J. Stewart Ross and R. B. Whitelaw, both of El Centro (Hickcox, Crenshaw & Trude, of El Centro, of counsel), for respondents. WILBUR, J. This is an action to recover $8,470.37 damages for the conversion of 94 bales of cotton. The plaintiff secured judgment against the defendants R. G. Erskine and C. Curtis for this amount sued for, less a payment of $1,499.80 made after the complaint was filed; but the judgment was in ment. A summary of the allegations of the complaint upon that subject follows: It is alleged that the cotton crop grown upon the leased land was delivered to the compress yard in Calexico, Cal., by C. Curtis, one of the tenants; that warehouse receipts were taken by him and pledged to the First National Bank of Los Angeles. It is alleged: "That all of said warehouse receipts including the warehouse receipts for the one-fourth (4) of said cotton owned by the plaintiff herein, the title to which one-fourth (4) interest was transferred to the plaintiff herein by the said Erskine and Curtis as payment for rent and that all of said warehouse receipts are of the said premises hereinbefore described, now being held by the said defendant, First National Bank of Los Angeles, or by its agent, the First National Bank of Calexico, and held by them in escrow to satisfy a purported bill of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |