The principle is well settled that where a taxpayer, in good faith, makes timely effort to pay taxes and failure to do so is caused by the fraud, mistake or negligence of a public officer whose duty it is to impart correct information to such tax payer, he does not lose his right to redeem by his failure to comply with the statute. Scudder v. Hart, 45 N.M. 76, 110 P.2d 536; Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576, 134 A.L.R. 1290; State ex rel. McFann v. Hately, 34 N.M. 86, 278 P. 206; Turner v. Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280. In Kershner v. Sganzini, supra, in dealing with a similar case, we said:
We have held that redemption statutes must be construed liberally in favor of the landowner. Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576 (1941). Bearing in mind what we have discussed above, especially our discussion on long-recognized principles of statutory construction, forfeiture, and redemption, let us now examine closely the provisions of Section 7-38-66(C).
Tabets had a right to rely on her representations. See Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576 (1941). As principal, the State was bound by the county treasurer's acceptance of Tabets' payment.
We conclude that, unless the conveyances were void and a nullity, the State had no standing to assert rights given by statute to "owners" or "persons entitled to redeem." In Kershner v. Sganzini, 45 N.M. 195, 204, 113 P.2d 576, 134 A.L.R. 1290, grantees in a tax deed executed by the county treasurer without authority of law were held to be strangers to the title and not entitled to assert rights against the former owner. It was there held that the State was not a party and made no claim with reference thereto.
Louie Bishop, Paul S. Griffith, Waynesboro; Robert L. Calhoun, Hattiesburg, for appellees. I. The taxpayer had the right to rely upon the notice of the Chancery Clerk. Darrington v. Rose, 128 Miss. 16, 90 So. 633; Hicks v. Nelson, 45 Kan. 47, 25 P. 218, 23 Am. St. Rep. 709, 82 A.L.R. 505; Kelly v. Coker, 197 Miss. 131, 19 So.2d 519; Kershner v. Scanzini (N.M.), 113 P.2d 576, 134 A.L.R. 1290; McLain v. Meletio, 166 Miss. 1, 147 So. 878; State of Wyoming ex rel. W.O. Bishop v. Bramblett, 43 Wyo. 470, 5 P.2d 279; Sec. 9941; Code 1942; Anno. 82 A.L.R. 502-503; 51 Am. Jur., Sec. 1119 p. 966; 85 C.J.S. 249; 26 R.C.L. 431. II. The Chancery Clerk's release of the lands from the tax sale cancel all rights of the purchaser at said sale.
* * * As between redemption before deed is issued to the state and repurchase afterwards the result, so far as the person whose title has been extinguished is concerned, is the same. The mechanics only, are different. * * *" Other cases to the effect are: DeBaca v. Perea, 52 N.M. 418, 200 P.2d 715; Sanchez v. New Mexico State Tax Commission, 51 N.M. 154, 180 P.2d 246; and Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576, 134 A.L.R. 1290. It is our opinion, and we so hold, that when appellee repurchased the property in question, title to which had been extinguished by issuance of a tax deed to the state, he merely redeemed the same from the tax sale and was payment of the taxes for the years 1937, 1938, 1939 and 1940.
1953 Comp. ยง 72-8-20. Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576, 134 A.L.R. 1290, and Scudder v. Hart, 45 N.M. 76, 110 P.2d 536. But as held in Lile v. Lodewick, 53 N.M. 511, 212 P.2d 422, one seeking to set aside a tax title on the ground of fraud, actual or constructive fraud, in giving out erroneous information, has the burden of establishing such fact by clear and convincing evidence, a mere preponderance will not suffice. See, also, Greene v. Esquibel, 58 N.M. 429, 272 P.2d 330; and Lamb v. Manley, 58 N.M. 292, 270 P.2d 706. Compare Lumpkins v. McPhee, 59 N.M. 442, 286 P.2d 299. So it is that we must sustain the trial court's findings against fraud at either level, that of the county treasurer and, as well, at the state tax commission level. But it is said the tax titles involved are all bad, null and of no effect because no tax sale was ever held, or completed, in Rio Arriba County in December, 1942. Unfortunately, for plaintiff's contention on this score, the trial court found against him on the issue.
The complete sections are readily available and, therefore, will not be quoted here. In this case appellant seeks to apply the doctrine of constructive fraud set forth in the two following decisions of this Court: Scudder v. Hart, 1941, 45 N.M. 76, 110 P.2d 536; and Kershner v. Sganzini, 1941, 45 N.M. 195, 113 P.2d 576, 134 A.L.R. 1290. If we understand appellant's position, he would extend this doctrine to cover cases in which the county treasurer fails in his duty to send notices as prescribed in ยงยง 4 and 16 of Ch. 27, Laws 1934. We cannot so extend the doctrine of constructive fraud.
Now it is proposed to open with the key of estoppel the door to this bulwark of protection so long afforded the wives of this state against efforts by any husband so disposed to rob them of it. It is my candid judgment if the majority opinion remains the law, another decade will see the questioned statute so whittled away by cases relying on estoppel as to rob it of any effectiveness for all practical purposes. Witness what has happened to the delinquent tax law since this Court in Scudder v. Hart, 45 N.M. 76, 110 P.2d 536, and Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576, 134 A.L.R. 1290, extended by interpretation the fraud declared sufficient to defeat a tax title to embrace "constructive fraud." The flood of cases following demonstrates what can happen to a statute once the key of estoppel is turned in the door locked for its protection.
Since no assignment of the tax sale certificate, issued to the State, having been made before the 2 years period of redemption expired, title vested in the State by operation of law, and the failure of the county treasurer, immediately upon the expiration of the redemption period, to execute a tax deed to the State as provided by section 76-724 of the statute, did not authorize the county treasurer to thereafter assign the certificate and issue a tax deed based thereon to a third party, such authority resting solely with the State Tax Commission, and the action of said treasurer was without authority and wholly void. In Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576, 581, 134 A.L.R. 1290, we said: "The treasurer was without authority to assign the certificate in question after Dec. 12, 1938, even assuming all prior acts with reference to the certificate and touching upon the sale to be immune from attack.