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.
1953 Comp. § 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.
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.
The defendant makes some point of the fact the plaintiff purchased the land without an abstract, and did not get one until just before the trial, saying it would have disclosed the unpaid 1946 taxes, but we do not believe this failure is a valid defense to the plaintiff's action for cancellation. We believe this is a proper case for the application of the doctrine of constructive fraud as announced in the cases of 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, and the judgment will be affirmed. LUJAN, C.J., and SADLER, COMPTON, and COORS, JJ., concur.
(Emphasis ours.) The invalidity of tax titles, because of the fraud committed by public officers, was before us in Scudder v. Hart, 45 N.M. 76, 110 P.2d 536, and in Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576, but we do not find that this court has passed on the question here raised, the fraud of the purchaser to defeat the title. Appellants insist that in order to defeat a tax title there must be a false representation of fact, present or past.
We have held treasurers committed constructive fraud and misled the taxpayers to their injury where they gave erroneous information concerning the status of the taxes, and cancelled tax deeds on account thereof. See Scudder v. Hart, 45 N.M. 76, 100 P.2d 536, and Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576, 134 A.L.R. 1290, but no such situation is presented here. The time for bringing an action attacking the proceedings on account of the neglect of the treasurer expired two years after the date of the sale as provided in Sec. 76-727, 1941 Compilation. The other members of the Court did not join in the views expressed by Mr. Justice Bickley in Taylor v. Shaw, supra, and we now decline to follow them.
The case would not come within the rule laid down in Scudder v. Hart, 45 N.M. 76, 110 P.2d 536, where the taxpayer who tried to pay his taxes was misled by information given by the County Treasurer to the effect that no other or further taxes than those then being settled for were due, which was held to be constructive fraud. Upon the subject of tax sale and redemption right generally, see also: Foster v. Bennett, 44 N.M. 618, 107 P.2d 321; Hughes v. Raney, 45 N.M. 89, 110 P.2d 544; Kershner v. Sganzini, 45 N.M. 195, 113 P.2d 576, 134 A.L.R. 1290. Had it been pleaded that the Assessor had refused to accept an assessment or to permit appellant to render his lot for taxation, another question would be presented, perhaps.