(dissenting)..
In my view, the majority determinations, (1) that the Tax Commission deed, procured by the fraud of the grantee, .is voidable only—not void; and (2) that there can be no cancellation of the deed when there has been a sale to a bona fide purchaser, are erroneous. I feel a deed procured :under provisions of § 72-8-31, N.M.S.A.1953, by one having no right, title or interest in the property is void, and secondly, á bóna fide purchaser from the holder of an. invalid tax deed acquires no better title than his grantor. ' ' -
This appeal comes to us from a summary judgment. Accordingly, the allegations of the complaint are to be considered as true. We must accept as a fact that Elmer N. Garcia fraudulently represented to the State Tax Commission that he was a former owner of the real estate entitled to redeem. The deed from the Tax Commission to him was, therefore, issued pursuant to § 72-8-31, N.M.S.A.1953, the pertinent portion of which reads:
“The person, * * * whose title to or interest in property, has been extinguished by the issuance of a tax deed to the state shall have the prior right to repurchase such property.
“For a period of one- [L] 'year ;áfter the date any tax deed, to, the state has been recorded, the’ state- tax'coínmissidñ - shall not convey any property acquired by such tax deed to any person other than one entitled to repurchase the property. * * * >t
’Trujillo v. Montano, 64 N.M. 259, 327 P.2d 326, is controlling and requires summary judgment in favor of the State. The same statute under which the present deed was issued by the Tax Commission was there construed to mean that a person who was not, in fact, a former owner can acquire no title by a deed issued under the provisions of § 72-8-31, supra, and specifically holds that the grantee of such person likewise acquires no title. I can conceive of no language which could more strongly say that a deed issued within one year of the recording of a tax deed to the State conveying property to one not a former owner is void, and that neither such fraudulent grantee nor a purchaser from him acquires any title to the land so sold by the Tax Commission. This court said:
“We are of opinion, and so hold, that any person who procures a tax deed from the State under the provisions of Section 72-8-31, supra, when he has no right, title or interest in the property, acquires no title to the land sold.” (Emphasis added.)
Thus, it is clear that the tax title in the hands of Garcia was invalid. Shackelford v. McGlashan, 27 N.M. 454, 202 P. 690, 23 A.L.R. 75, expressly rejects any theory that a bona fide purchaser from one holding an invalid tax title can acquire a better title than his grantor had. This court there said:
“ * * * If the tax title in the hands of the first purchaser is invalid, it gains no validity by transfer to another. The stream of title rises no higher than its source. * * * ”
Trujillo v. Montano, supra, likewise expressly denied the bona fide purchaser theory. In that case Senaida Roybal, who had no right, title or interest in the property at the time it was sold to the State for delinquent taxes, made formal application to repurchase the land, just as Garcia did in the instant case. This court said respecting the effect of a deed from her to Montano:
“On January 11, 1949, Senaida Roybal attempted to convey the land in question by warranty deed to the appellant. This deed, of course, is a nullity and has no force or effect. * * * ”
I find no support in New Mexico for the position of the majority that the holder of a quitclaim deed is a bona fide purchaser. Metzger v. Ellis, 65 N.M. 347, 337 P.2d 609, is directly contrary and controls on that question. We there said:
“ * * * In any event, the deed being, as stated, in the nature of a quitclaim deed, it is well settled that the same conveys only such title, if any, as the grantor had. Conversely, a quitclaim deed conveys nothing if the grantor himself did not have title or an interest in the property. Annotation, 162 A.L.R. 556, 562.”
Under the clear interpretation of the pertinent statute, Garcia had no title to the property, and his quitclaim deed to Wilkes conveyed nothing. I am unable to find in Mabie-Lowrey Hardware Co. v. Ross, 26 N.M. 51, 189 P. 42, relied upon by the majority, any support for the statement that a quitclaim deed holder is a bona fide purchaser. That case only stands for the proposition that the purchaser had a right to rely on the notice of recording statutes. That question is not before us here. See, 3 Pomeroy, Equity Jurisprudence, § 753c, p. 51; Annot., 51 A.L.R. 632 at 641.
Both Kyle v. Chaves, 42 N.M. 21, 74 P.2d 1030, and Scudder v. Hart, 45 N.M. 76, 110 P.2d 536, heavily relied upon by the majority to support the theory that the deed from the Tax Commission, procured by Garcia’s fraud, is only voidable as distinguished from being void, was decided on the construction of different statutes and under entirely different facts. Both are clearly distinguishable. In Kyle, the controversy was between the grantee of a tax deed, issued prior to expiration of the period within which taxes might have been paid, and the former owner who had made no effort to pay within the extended period granted by the 1933 Tax Moratorium Act. There, it was said this Act was enacted for the landowner’s benefit and that if he failed to take advantage of the statute enacted for his benefit, he could not attack the validity of a-deed issued contrary to the provisions of that statute. The deed issued prior to expiration of the extended period, under those circumstances, was said to be voidable rather than void. The reasoning of this court in Kyle was stated thus:
“ * * * The defendants * * * fall within the class of a delinquent taxpayer whose property had been sold in the process of collecting these delinquent taxes and had never performed any of the conditions provided by the Legislature for their relief, we ought not to say that the action of a county treasurer in failing to heed the admonition of the Legislature for the taxpayer’s benefit was absolutely void but only void upon condition that the taxpayer should avail himself of the protection afforded;
Scudder v. Hart, supra, is likewise wholly inapplicable. A tax deed issued without the statutory notice to a mortgagee was held not to divest him of his lien. The deed was said there to pass title subject to the lien of the mortgage. In the instant case, no’ rights of a former owner who failed to take advantage of statutes enacted for his benefit are involved. In Kyle and Scudder, the tax deeds were said to be only voidable because the former owner had both the power to avoid the tax sale and the powe'r to validate it. In Kyle, the former owner could have avoided the deed by payment within the statutory period or validate it by failure tó pay the taxes. The State, in this case, could not validate the deed as it was only authorized to issue to a former ownér.
In my view, the deed issued to Garcia upon his fraudulent representations, was voi4 ,and it gained no validity by his transfer to Wilkes. I, therefore, dissent.