OPINION OF THE COURT.
ABBOTT, A. J.
Counsel for the appellant claim, in the first place, that Section 25, above quoted, should be restricted in its application to errors and irregularities in listing propertjr for taxation, and was not meant to apply to defects in the assessment, advertisement and sale of land for taxes. The fact that immediately before the words which specifically limit the right of attack, there is a limitation of the effect of irregularities in listing does not, we think, have the effect claimed for it by the appellant. The argument for the opposite effect would be stronger. So far as listing was concerned, it ivas not to be expected that anything more would be said. The statement on that subject was complete. Besides, the act in question is evidently meant to contain a system of taxation practically complete in itself. The act consists of 34 sections; and while it leaves some portions of the legislation previously in existence unrepealed • unless they are in conflict with Chapter 22,, the reason for so doing is manifest from the proviso in Section 34: “All acts or parts of acts in conflict herewith, either general or special, are hereby repealed, and this act shall take effect and be in force from and after its passage: Provided, that the provisions of this act shall not affect or be applicable to taxes heretofore assessed or which are 'delinquent at the date of the approval hereof, except, that suit -for the same may be brought and judgment thereon rendered in the manner provided by this act, but the validity of such delinquent taxes shall be determined by the law in force at the time of making the assessment therefore. The time for the payment of all taxes now delinquent is hereby extended until May 1, 1899, and when tire same may be in litigation at the date of the passage of this act until such litigation shall be determined.” In view, then, of the comprehensive purpose of the act, of which the language last quoted leaves no doubt, it would be a forced construction which should narrow the application of Section 25 to errors in listing, leaving the much larger field of irregularities in advertising; making sale, giving certificates of sale and tax deeds uncovered.
It is claimed, too, that, even if the limitation on attack found in Section 25 is not restricted to cases of error in listing, yet by the words “sold at tax sale in accordance with this act,” it was meant to limit that restriction to those cases in which the provisions for advertisement and 'sale contained in the act should be strictly followed. We are satisfied, however, that it was meant by this provision to afford deliverance from the evil of having tax sales held invalid for irregularities which were not based on meritorious grounds, an evil which as a matter of common knowledge had assumed such proportions not only in New Mexico, blit throughout the country, as seriously to interfere with the fair adjustment of the burden of taxation. As pointed out by the Supreme Court of the United States in De Treville v. Smalls, 98 U. S. 517, Blackwell in his work on Tax Titles states that “of a thousand cases of tax sales in court not twenty have been sustained.” That the purpose of the act was what we have suggested is further indicated, as it seems to us beyond question, by the repetition in the act in various forms and connections of the declaration that a 'tax title shall be good against all but really meritorious objections. In the latter part of Section 23 it is provided that the judgment shall be “conclusive except in cases where the taxes had been paid or the real estate was not liable to the tax or assessment.” In Section 25, after the general statement already referred to, as if to make sure there should be no escape from it. there is a provision that, if the taxes had been paid on a portion of land sold, nevertheless the sale and certificate shall vest a perfect title in the portion on which the “taxes had not been paid.” In Section 34 there are provisions for mitigating what might be considered the rigors of the act through leaving the validity of delinquent taxes to be determined by the law in force when the assessment was made, and by extending the time of payment of taxes then delinquent, or in litigation at the pass-sage of the act. This measure of leniency toward defaults already made was superfluous, if no greater degree of strictness was to be exercised toward defaults of the future. Bearing in mind the familiar mle of statutory construction which gives to the legislative intention controlling force, we are satisfied that the words “in accordance with this act” — not, it should be noticed, as having perhaps some significance in accordance with the provisions of this act — mean, no more than under or by authority of this act, and that the intention was merely to limit the effect of Section 25 to cases coming under Chapter 22 as distinguished from those to which the provisions of law left unrepealed by it might apply.
Still further, counsel for the appellant contend that one of his reasons stated falls within one of the grounds of attack permitted by the statute (chapter 22), and, that as the tax levied was $3.78 and the sale was for $4.02, the land was not subject to the tax for which the alleged sale was made. It is said in reply that the difference between the two sums named would be covered by the interest and expenses of sale which the law permits the county to add, and such, it seems clear must have been the case. In Drennan v. Beierlein, 49 Mich. 272, Cooley, Jr., it was held, “in the absence of a clear showing to the contrary, that the addition was lawfully made.” But, even if it were not, to hold that such a trivial defect invalidated the appellee’s title, would be to return to the old way, instead of following the new, in conformity to the spirit and intention of the statute under consideration.
This brings us to the inquiry whether the legislature, having the will, had also the power to so limit the right of attack on a tax title. It is not claimed for the appellee that such a statutory limitation would stand against fraud or lack of jurisdiction, but they do assert that the irregularities set up iu the complaint do not go to the jurisdiction, and there is no claim of fraud made. The irregularities alleged are plainly distinguishable from suclr as .would defeat jurisdiction, as, for instance, that there was no tax laid, or attempted to be laid, on the land in question. Assuming, then, that there is no jurisdictional defect in the case, we have to determine the question of absolute right involved.
It is settled that the owner of real estate on which a tax has been laid is. not entitled as a matter of right to have it sold to satisfy the tax. It may be forfeited without á sale. King v. Mullins, 171 U. S. 404; King v. West Virginia, 216 U. S. 92; Fay v. Crozer, 217 U. S. 456; State v. Sponaugle, 45 W. Va. 415, 43 L. R. A. 727. And it has been held by the Supreme Court of the United State, whose decisions are controlling on this court, that, when a sale to collect a delinquent tax is provided for by statute, it may also bo provided that the title acquired by such sale shall not be invalidated for irregularities merely, hut only on such substantial grounds as that, the land was not subject to the tax, that the tax had been paid, or the land redeemed from the sale in the manner provided by law. De Treville v.
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OPINION OF THE COURT.
ABBOTT, A. J.
Counsel for the appellant claim, in the first place, that Section 25, above quoted, should be restricted in its application to errors and irregularities in listing propertjr for taxation, and was not meant to apply to defects in the assessment, advertisement and sale of land for taxes. The fact that immediately before the words which specifically limit the right of attack, there is a limitation of the effect of irregularities in listing does not, we think, have the effect claimed for it by the appellant. The argument for the opposite effect would be stronger. So far as listing was concerned, it ivas not to be expected that anything more would be said. The statement on that subject was complete. Besides, the act in question is evidently meant to contain a system of taxation practically complete in itself. The act consists of 34 sections; and while it leaves some portions of the legislation previously in existence unrepealed • unless they are in conflict with Chapter 22,, the reason for so doing is manifest from the proviso in Section 34: “All acts or parts of acts in conflict herewith, either general or special, are hereby repealed, and this act shall take effect and be in force from and after its passage: Provided, that the provisions of this act shall not affect or be applicable to taxes heretofore assessed or which are 'delinquent at the date of the approval hereof, except, that suit -for the same may be brought and judgment thereon rendered in the manner provided by this act, but the validity of such delinquent taxes shall be determined by the law in force at the time of making the assessment therefore. The time for the payment of all taxes now delinquent is hereby extended until May 1, 1899, and when tire same may be in litigation at the date of the passage of this act until such litigation shall be determined.” In view, then, of the comprehensive purpose of the act, of which the language last quoted leaves no doubt, it would be a forced construction which should narrow the application of Section 25 to errors in listing, leaving the much larger field of irregularities in advertising; making sale, giving certificates of sale and tax deeds uncovered.
It is claimed, too, that, even if the limitation on attack found in Section 25 is not restricted to cases of error in listing, yet by the words “sold at tax sale in accordance with this act,” it was meant to limit that restriction to those cases in which the provisions for advertisement and 'sale contained in the act should be strictly followed. We are satisfied, however, that it was meant by this provision to afford deliverance from the evil of having tax sales held invalid for irregularities which were not based on meritorious grounds, an evil which as a matter of common knowledge had assumed such proportions not only in New Mexico, blit throughout the country, as seriously to interfere with the fair adjustment of the burden of taxation. As pointed out by the Supreme Court of the United States in De Treville v. Smalls, 98 U. S. 517, Blackwell in his work on Tax Titles states that “of a thousand cases of tax sales in court not twenty have been sustained.” That the purpose of the act was what we have suggested is further indicated, as it seems to us beyond question, by the repetition in the act in various forms and connections of the declaration that a 'tax title shall be good against all but really meritorious objections. In the latter part of Section 23 it is provided that the judgment shall be “conclusive except in cases where the taxes had been paid or the real estate was not liable to the tax or assessment.” In Section 25, after the general statement already referred to, as if to make sure there should be no escape from it. there is a provision that, if the taxes had been paid on a portion of land sold, nevertheless the sale and certificate shall vest a perfect title in the portion on which the “taxes had not been paid.” In Section 34 there are provisions for mitigating what might be considered the rigors of the act through leaving the validity of delinquent taxes to be determined by the law in force when the assessment was made, and by extending the time of payment of taxes then delinquent, or in litigation at the pass-sage of the act. This measure of leniency toward defaults already made was superfluous, if no greater degree of strictness was to be exercised toward defaults of the future. Bearing in mind the familiar mle of statutory construction which gives to the legislative intention controlling force, we are satisfied that the words “in accordance with this act” — not, it should be noticed, as having perhaps some significance in accordance with the provisions of this act — mean, no more than under or by authority of this act, and that the intention was merely to limit the effect of Section 25 to cases coming under Chapter 22 as distinguished from those to which the provisions of law left unrepealed by it might apply.
Still further, counsel for the appellant contend that one of his reasons stated falls within one of the grounds of attack permitted by the statute (chapter 22), and, that as the tax levied was $3.78 and the sale was for $4.02, the land was not subject to the tax for which the alleged sale was made. It is said in reply that the difference between the two sums named would be covered by the interest and expenses of sale which the law permits the county to add, and such, it seems clear must have been the case. In Drennan v. Beierlein, 49 Mich. 272, Cooley, Jr., it was held, “in the absence of a clear showing to the contrary, that the addition was lawfully made.” But, even if it were not, to hold that such a trivial defect invalidated the appellee’s title, would be to return to the old way, instead of following the new, in conformity to the spirit and intention of the statute under consideration.
This brings us to the inquiry whether the legislature, having the will, had also the power to so limit the right of attack on a tax title. It is not claimed for the appellee that such a statutory limitation would stand against fraud or lack of jurisdiction, but they do assert that the irregularities set up iu the complaint do not go to the jurisdiction, and there is no claim of fraud made. The irregularities alleged are plainly distinguishable from suclr as .would defeat jurisdiction, as, for instance, that there was no tax laid, or attempted to be laid, on the land in question. Assuming, then, that there is no jurisdictional defect in the case, we have to determine the question of absolute right involved.
It is settled that the owner of real estate on which a tax has been laid is. not entitled as a matter of right to have it sold to satisfy the tax. It may be forfeited without á sale. King v. Mullins, 171 U. S. 404; King v. West Virginia, 216 U. S. 92; Fay v. Crozer, 217 U. S. 456; State v. Sponaugle, 45 W. Va. 415, 43 L. R. A. 727. And it has been held by the Supreme Court of the United State, whose decisions are controlling on this court, that, when a sale to collect a delinquent tax is provided for by statute, it may also bo provided that the title acquired by such sale shall not be invalidated for irregularities merely, hut only on such substantial grounds as that, the land was not subject to the tax, that the tax had been paid, or the land redeemed from the sale in the manner provided by law. De Treville v. Smalls, 98 U. S. 517; Keeley v. Sanders, 99 U. S. 441; Springer v. United States, 102 U. S. 586.
It is contended by the appellee that the Supreme Court has, in Marx v. Hanthorn, 148 U. S. 184, overruled the dectrine of the three cases last cited. We do not so un'dérstand that decision, hut accept rather the view of it expressed by the same court in Castillo v. McConnico, 168 U. S. 684, wherein it is said: “The case of Marx v. Hanthorn, 148 U. S. 172, in no way conflicts with the foregoing considerations. That ease came to this court on appeal from a Circuit Court of the United States, and its decision involved ascertaining the meaning of the tax laws of the state as interpreted bv the court of last resort thereof. In performing this duty the court adopted and followed the construction given to the tax laws of the state by the Supreme Court of tbe state whence the case came.’’ It is also contended for the appellant that, even if the certificate and deed given in -pursuance of a judgment under Section 23, of Chapter 22, is protected from attack as in that section provided, yet the certificate and deed given without a judgment under Section 31 should not be held entitled, to that protection. In terms the statute gives it the same standing that the certificate following a judgment has. The reason for selling without judgment in any case in which the tax delinquent does not exceed $25 is doubtless that for so small a tax the costs of obtaining judgment would b'e disproportionate. Bearing' -.in mind that, as we have seen, it is not essential that there should be a sale by parity of reasoning there need be no judgment.
In reaching our conclusion we have not been unmindful of the hardship which may sometimes come upon owners of real estate through the enforcement of such a statute. But the course open to such an owner should, with a very moderate degree of care on his part, protect him from harm. lie is presumed to know that his property lias been taxed, and the time at which it becomes subject to tax. He has the right of appeal from the assessment to the county board of equalization, and from it to the terHtorial board. Even if the land is sold, he lias the right for throe years to redeem it, by paying the tax, interest, etc. The statute provides for similar publication of notice in each case, and it can make no substantial difference to the party delinquent that on a tax of $25 or more he is notified as one of a body of delinquents that at a certain time judgment will be rendered in court against the entire class, or that at a certain time and placo his property will be sold for a delinquent tax.
Numerous decisions for and against tbe view we adopt are to lie found in the exhaustive briefs submitted, but, as this decision must stand or fall with our interpretation of what the Supreme Court of the United States has said on the subject, we think it would be useless to g-i further into the examination of authorities here.
The judgment of the trial court is affirmed.
Mecliem, J., having been' of counsel in the court below, did not participate.