[4] In our original opinion we based our conclusion with reference to the valuation and assessment of the 20,000 acres of timber land involved in the appeal to the state tax commission on our construction of the tax roll, as amended by direction of the tax commission following the appeal, copy of which was set out in the record, as disclosing that it was the intention of the commission to separately value the land and the timber growing thereon for the purpose of arriving at the final total valuation of the 20,000 acres. On motion for rehearing the appellee challenges the correctness of that construction and, after hearing argument, and, further considering the facts as disclosed by the record, we are agreed that we were in error in our first conclusion, and that what the tax commission attempted to do was to revalue the entire acreage, including the 90,308, as well as the 20,000 acres, and to make a separate valuation of 400,000,000 feet of growing timber without definitely locating that timber on the 20,000 acres. While the 20,000 acres constituted a part of the 110,308 acres which the commission undertook to value, we have no means of knowing what part of that value should be assigned to the former. But that was the only subject-matter before the commission for valuation. The order of the commission, *Page 33 then, by direction of which the tax roll was amended, and by which the commission undertook to dispose of the appeal, deals wholly with a subject-matter not involved in the appeal, and the commission was without jurisdiction to make it. Since such order was made without jurisdiction, it is void, and did not and does not dispose of the appeal which was pending before the tax commission, and the appeal, being undisposed of, is still there pending. The result is that the valuation of $1.25 an acre on the 90,308 acres of grazing land stands for the reasons stated in our original opinion, and that no final valuation has yet been fixed on the 20,000 acres of timber land, and, until the state tax commission acts on the appeal now before it and fixes that valuation there can be no completed assessment of the 20,000 acres of timber land upon which a valid levy of taxes can be made.
The judgment of the court was correct to the extent that it was based upon the value of $1.25 an acre on the 90,308 acres, but in so far as it was based upon the valuation of $4 an acre on the 20,000 acres, which the court undertook to fix from the evidence of value before it, it was without jurisdiction and void, on authority of the recent South Spring Case cited in the original opinion. That portion of the judgment, therefore, cannot stand, and, since there has not yet been any completed assessment of the 20,000 acres of timber land made by the taxing authorities, we cannot direct and the trial court cannot render any judgment for taxes on that land.
The result which we have now reached necessitates a further modification of our former opinion. The judgment appealed from was based in part on the valuation and assessment of the 20,000 acres of timber land, and, as we have seen, was to that extent without jurisdiction and void. This results in a liability on the part of the appellee less in amount that the amount of the judgment, so that the case does not come within exception to the rule stated in State v. Fernandez Co., 28 N.M. 425, 213 P. 769, cited in the original opinion, and, the appellant having accepted the benefits of a judgment greater in amount than *Page 34 that to which it was entitled, the appeal should be dismissed. That leaves the parties in this situation: The appellee has paid its taxes for the year 1919 on the 90,308 acres of grazing land based on a valid assessment thereof. There has been no completed assessment of the 20,000 acres of timber land, and the judgment of the court by which an assessment thereof is attempted to be made is void; but the appellee, in pursuance of that void judgment, has paid and the state has received a sum based on such invalid assessment at a valuation of $4 an acre. This payment, having been made and received as a payment of taxes for the year 1919, but not being based on any assessment, should be credited to the appellee on whatever valid assessment and levy may hereafter be made in pursuance of the appeal now pending before the state tax commission.
[5] Our former opinion and judgment will be modified to conform to what we have now said, and the appeal dismissed; and it is so ordered.
PARKER, C.J., and BRATTON, J., concur.