1996 -NMSC- 78, Sims v. Sims

• Decision Date: 06 December 1996
• Docket Number: No. 21818,21818
• Citation: 1996 NMSC 78,122 N.M. 618,930 P.2d 153
• Parties: , 1996 -NMSC- 78 Leo V. SIMS, et al., Plaintiffs-Appellees, v. Aline SIMS, individually and as personal representative of the Estate of George P. Sims, deceased, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 153

930 P.2d 153

122 N.M. 618, 1996 -NMSC- 78

Leo V. SIMS, et al., Plaintiffs-Appellees, v. Aline SIMS, individually and as personal representative of

the Estate of George P. Sims, deceased, Defendant-Appellant.

No. 21818.

Supreme Court of New Mexico.

Dec. 6, 1996.

Law Offices of R.E. Richards, P.A., R.E. Richards, Hobbs, Heidel, Samberson, Newell & Cox, C. Gene Samberson, Lewis C. Cox, III, Lovington, for Appellant.

Hinkle, Cox, Eaton, Coffield & Hensley, Stuart D. Shanor, Richard E. Olson, Rebecca Nichols Johnson, Roswell, for Appellees.

Jan Unna, Santa Fe, for amicus curiae Commissioner of Public Lands.

OPINION

FRANCHINI, Justice.

1 Aline Sims appeals a judgment partitioning two ranches. She raises seven issues on appeal. We affirm the trial court on all issues.

I. FACTS

2 This case concerns a dispute among five family members and the resultant partition of properties that they owned as tenants-in-common. The family members hold two ranches in Lea County, New Mexico. The S & D Ranch consists of approximately 12,262 deeded acres and a state grazing lease of 160 acres. The Sims Brothers Ranch consists of approximately 25,722 deeded acres, a state grazing lease of 7,081 acres, and a Federal Bureau of Land Management Permit to lease 40 acres. The five family members--Leo V. Sims, the Estate of Elizabeth Daugherty, the Estate of Ellie Spear, Winnie Kennanand, and Aline Sims individually and as personal representative of the estate of George P. Sims--own various percentages of undivided shares in the two ranches and are co-lessees of the state and federal grazing leases.

3 Business disagreements concerning management of the ranches culminated in the filing, on March 22, 1983, of this lawsuit against Aline Sims by the other four family members. The four Plaintiffs--the Sims Group--requested that the two ranches owned by the parties as tenants-in-common be partitioned. In her Answer and Counterclaim, Aline Sims also requested that the ranches be partitioned.

4 After several years of legal maneuvering that is irrelevant to this case, Aline Sims, on November 19, 1990, filed a motion in which she stated that there was no issue of material fact as to the interests held by each party in the two ranches. She requested a judgment by the court that would establish the parties' respective interests for the purposes of the partition action. In this request she omitted reference to the state and federal grazing leases. Apparently this was because the parties already disagreed as to whether the New Mexico Partition Act permitted leaseholds to be partitioned.

5 On December 28, 1990, Aline Sims filed a motion asking the court to appoint three commissioners whose duty, under the Partition Act, would be to examine the property and each co-tenant's interest therein, and to write a report recommending how the property should best be divided. See NMSA 1978, § 42-5-6. The Sims Group, in its reply to this motion, agreed to the appointment of commissioners.

6 On January 4, 1991, the court entered an Order (January Order) finding that there was no dispute between the parties as to the ownership of the Sims Brothers Ranch and the S & D Ranch. The court recognized the validity of the description provided by the five litigants of their percentage of ownership for each parcel of land. However this Order made no reference to the state and federal grazing leases and made no determination about whether they could be partitioned.

7 On November 5, 1991, the January Order was modified by a second Order (November Order) that formally permitted the Sims Group to pool their interests in the two ranches. The Sims Group had previously informed the court of their desire to pool their interests and be considered a single ownership group for the purposes of partition. Aline Sims objected to this arrangement, claiming it violated the Partition Act. In the November Order, the trial court determined the pooling was lawful, subject only to the filing by the Sims Group of a formal "Declaration of Intention to Pool Interests," in which they acknowledged that they understood the implications of their request. This Declaration had been filed August 7, 1991.

8 In the November Order, the court also found that certain lands situated in Texas that belonged to the S & D Ranch had been inadvertently omitted from the property descriptions in the January Order. The court directed that the January Order be modified to include the descriptions of those Texas lands. The court also noted that, contrary to Aline Sims' assertions, the January Order was not final but rather was interlocutory, and the court retained jurisdiction to amend and modify that Order as the circumstances of the case required.

9 On January 15, 1993, the three commissioners were selected, and the court issued its "Instructions to Commissioners." Over Aline Sims' objections, these instructions directed the commissioners to devise two plans, one that included and one that excluded the partitioning of the state and federal grazing leases.

10 The commissioners completed their evaluation and filed their report on March 29, 1993. Their recommendations included an award to the Sims Group of all of the S & D Ranch and 15,946 acres of the Sims Brothers Ranch. Aline Sims received the remaining 16,934 acres of the Sims Brothers Ranch. However, the commissioners determined that the lands could not be divided in strict proportion to the interests of the two parties. The Sims Group received property of greater value than their proportionate interest. Therefore, to make up the difference, Aline Sims received a cash payment--known as an owelty award--of $26,429.00.

11 Aline Sims filed her objections to the "Report of the Commissioners" on May 3, 1993, and at the subsequent hearings she detailed her complaints. On November 9, 1993, the court filed its decision rejecting all of Aline Sims' objections to the commissioners' report. On October 29, 1993, the court entered its "Judgment Partitioning Real Property" in which it substantially adopted the recommendations of the commissioners.

12 On appeal Aline Sims raises--in a somewhat different order than we present here--seven issues: 1) whether the New Mexico Partition Act precludes the partitioning of leaseholds; 2) whether the state Commissioner of Public Lands is an indispensable party to the partitioning of state-owned land; 3) whether the trial court erred in modifying an interlocutory order; 4) whether the four members of the Sims Group could lawfully pool their interests in the two ranches; 5) whether the partition order was prejudicial to the rights of Aline Sims; 6) whether the trial court improperly modified the recommendations of the commissioners; and 7) whether the commissioners failed to follow the instructions of the trial court. For the reasons set out below, we affirm the trial court on all seven issues.

II. LEASEHOLDS MAY BE PARTITIONED

A. Statutes in Question

13 The partitioning of property in New Mexico is governed by NMSA 1978, §§ 42-5-1 to -9 (Orig.Pamp. & Cum.Supp.1996), unofficially called the Partition Act. Section 42-5-1 describes the circumstances under which property may be partitioned:

When any lands, tenements or hereditaments shall be owned in joint tenancy, tenancy in common or coparcenary, whether the right or title be derived by donation, grant, purchase, devise or descent, it shall be lawful for any one or more persons interested, whether they be in possession or not, to present to the district court their complaint in chancery, praying for a division and partition of such premises, according to the respective rights of the parties interested therein, and for a sale thereof, if it shall appear that partition cannot be made without great prejudice to the owners.

Section 42-5-1 (emphasis added).

14 Aline Sims claims that in order for the trial court to partition state or federal grazing leases, such leases must be included within the definitions of "lands, tenements and hereditaments" and "real estate." But these expressions, according to Aline Sims, pertain only to interests in real property. She contends that leaseholds, because they are considered personal rather than real property, cannot be partitioned under New Mexico law. She supports her argument by pointing to several New Mexico cases stating that leaseholds are personal and not real property. See, e.g., Western Sav. & Loan Ass'n v. CFS Portales Ethanol I, Ltd., 107 N.M. 143, 144, 754 P.2d 520, 521 (1988) ("A leasehold or a term for years is a chattel, not real property, no matter how long its term."); Swayze v. Bartlett, 58 N.M. 504, 512, 273 P.2d 367, 372 (1954) ("So far as the state lease in question is concerned, it is a chattel and not real property."); Ellison v. Ellison, 48 N.M. 80, 82, 146 P.2d 173, 174 (1944) (stating a leasehold is a chattel); State ex rel. Truitt v. District Court, 44 N.M. 16, 31, 96 P.2d 710, 719 (1939) (concluding a leasehold is personal property); American Mortgage Co. v. White, 34 N.M. 602, 605, 287 P. 702, 703 (1930) ("Terms for years, of grazing lands ... are chattels real, falling within the classification of personal property and governed by the rules applicable to other kinds of personal property.").

15 Furthermore, Aline Sims argues that, under Section 42-5-1, the persons requesting partition must be the "owners" of the land in question. Since lessees are by definition not the owners of the land that they are leasing, she alleges that the statute precludes lessees from requesting partition of that leasehold.

16 Aline Sims finds additional support for these claims in other language from the Partition Act. For example, she notes that Section 42-5-6 authorizes the court to appoint commissioners who are empowered to "make partition of said lands, tenements and hereditaments, assigning to each party his share by metes and bounds." (Emphasis added.) She contends therefore, that Section 42-5-6 applies only to real...