Albright v. Albright

• Decision Date: 01 May 1916
• Docket Number: No. 1833.,1833.
• Parties: ALBRIGHTv.ALBRIGHT ET AL.
• Court: New Mexico Supreme Court

21 N.M. 606

157 P. 662

ALBRIGHT

v.ALBRIGHT ET AL.

No. 1833.

Supreme Court of New Mexico.

May 1, 1916.

Syllabus by the Court.

In a suit instituted by a daughter against her father for the partition of the real estate owned by her mother at the time of her death, she having died intestate, the uncorroborated evidence of the father is sufficient to sustain a finding by the trial court that the real estate, standing in the name of the wife at the time of her death, was community property. Section 2175, Code 1915, has no application to a suit between heirs for the partition of the real estate of their ancestor.

Section 1087, C. L. 1884, and section 1509, C. L. 1897, which defined “separate property” of the wife and further provided that, “and any * * * woman may, during coverture, receive, take, hold, use, and enjoy property of any and every description, and all avails of her industry, free from any liability of her husband on account of his debts, as fully as if she were unmarried” construed. Held, that the clause quoted simply exempted the earnings of the wife from liability for the debts of the husband, and did not make the wife's earnings her own separate property.

Under sections 4169 and 4171, Code 1915, in every amendatory or supplemental pleading filed by a party, it is necessary for him to therein restate his entire cause of action, defense, or reply, and all matters set forth in his original pleading and not carried forward into his amended or supplemental pleading are abandoned, and a judgment for the defendant dismissing a cause on the merits is res adjudicata only as to such matters as were carried forward by a plaintiff into his amended or supplemental complaint.

Without a judgment the plea of res adjudicata has no foundation and neither the verdict of a jury nor the findings of a court or referee, even though in a prior action upon the precise point involved in a subsequent action and between the same parties, constitute a bar.

Although admissions contained in a pleading of a party in a former action are admissible against him in a subsequent action between him and a stranger, the pleading does not conclusively establish the facts alleged therein, and is open to explanation or rebuttal.

Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.

Action by Claude Albright against J. G. Albright and others. From a judgment for defendants, plaintiff appeals. Affirmed.

In a suit instituted by a daughter against her father for the partition of the real estate owned by her mother at the time of her death, she having died intestate, the uncorroborated evidence of the father is sufficient to sustain a finding by the trial court that the real estate, standing in the name of the wife at the time of her death, was community property. Section 2175, Code 1915, has no application to a suit between heirs for the partition of the real estate of their ancestor.

Marron & Wood, of Albuquerque, for appellant.

Alonzo B. McMillen, of Albuquerque, for appellees.

Statement of Facts.

ROBERTS, C. J.

Claude Albright, the plaintiff in the court below, appellant here, is the only child of the defendant J. G. Albright and of Franc E. L. Albright, deceased. The mother died February 19, 1912, and this suit was instituted by the daughter against her father to partition certain property alleged to be the separate estate of the mother. Plaintiff alleged that the real estate described in her complaint was conveyed to her mother during her life by instrument in writing. The answer of J. G. Albright admitted that the property was conveyed to plaintiff's mother by instrument in writing, and denied each and every other allegation, and alleged that:

“All of said property was acquired by the said Franc E. L. Albright during the marriage relation existing between the said Franc E. L. Albright and this defendant, and was at the time that the same was conveyed to the said Franc E. L. Albright and at all times up to the time of her decease, community property of the marriage community composed of the said Franc E. L. Albright and this defendant.”

The answer denies that the plaintiff had any right, title, or interest in and to said property, and prayed for a decree quieting title in favor of said defendant J. G. Albright and against said plaintiff.

After trial of the issues, the court made the following findings:

“I. That the defendant J. G. Albright was married to Franc E. Luce at Longton, Kan., in October, 1872, and that the said marriage relation continued until the death of the said Franc E. L. Albright in February, 1912, and that the plaintiff Claude Albright is the only child of the said J. G. Albright and the said Franc E. L. Albright, deceased.

II. That the said defendant J. G. Albright and his wife Franc E. L. Albright removed to New Mexico in the year 1880 and lived in New Mexico continuously in the relation of husband and wife until the death of Franc E. L. Albright and the said defendant J. G. Albright has ever since lived in New Mexico.

III. That at the time of the death of the said Franc E. L. Albright the real estate described in plaintiff's complaint stood in the name of the said Franc E. L. Albright, having been conveyed to her by instrument in writing.

IV. That all the real estate described in plaintiff's complaint was purchased between the 13th day of December, 1884, and the 22d day of July, 1898, and with the earnings and income of the said Franc E. L. Albright and J. G. Albright; that the said Franc E. L. Albright and J. G. Albright had but little property at the time of their marriage, and but little, if any, after paying their expenses to New Mexico in 1880; and whatever the said Franc E. L. Albright had under her control, if any, was put into a photograph business which she established in the city of Santa Fé, N. M., soon after coming to New Mexico.

V. That none of the real estate standing in the name of the said Franc E. L. Albright at the time of her death was purchased by funds acquired by inheritance, donation, legacy, gift, bequest, devise or descent.

Findings of Law.

The court finds as a matter of law that the property described in plaintiff's complaint was at the time of the death of said Franc E. L. Albright community property of the marriage community composed of the defendant J. G. Albright and the said decedent Franc E. L. Albright, and that upon the death of the said Franc E. L. Albright, the whole of said property descended to her surviving husband, J. G. Albright, and that the plaintiff Claude Albright has no right, title, or interest in or to said real estate.”

Final judgment was entered in accordance with the findings of fact and law, and the plaintiff was found to have no right, title, or interest in or to said real estate described in the complaint, but the defendant J. G. Albright was decreed to be the owner of the whole of said real estate and his title was quieted against the claim of the plaintiff. From such judgment this appeal is prosecuted by the plaintiff.

Opinion of the Court.

The appellee J. G. Albright was married to Franc E. Luce, appellant's mother, at Longton, Kan., in October, 1872, which marriage relations continued until the death of the wife in February, 1912. Appellant was the only child. At the time of the marriage neither party thereto was possessed of much property; the wife having a small photograph gallery, and the husband a small tin and hardware business. Not long after they were married Mrs. Albright inherited a tract of 80 acres of Kansas land which was traded for a carload of sewing machines at a value of $500, which were sold or exchanged for cattle, horses, and other personal property, from which was realized, with the efforts of appellee, about $1,200, which was again invested in other property. Mr. and Mrs. Albright removed from Kansas to Santa Fé, N. M., in 1880. At that time they sold all of their property in Kansas, and after paying their debts had but very little money left. Mrs. Albright engaged in the photograph business in Santa Fé, and Mr. Albright in the newspaper business. The appellee was the only witness testifying in the case who pretended to know very much about the amount of money and property owned by the Albrights at the time they came to New Mexico, and how the little they had was acquired. He says it was very little and had been acquired by their joint efforts. After their removal to New Mexico the wife was very successful in the photograph business, and after their removal to Albuquerque in 1884 she invested in the real estate involved in this suit. All the real estate was acquired prior to 1907. During most of the time from 1880 until after the death of his wife, Mr. Albright engaged in the newspaper business. During a portion of the time he says his business was very profitable, but eventually he was forced to dispose of his plant to satisfy his creditors, and the evidence shows conclusively that practically all of the money that was invested in the real estate was earned by the wife in the photograph business. If the evidence of J. G. Albright, the appellee, without corroboration, afforded substantial evidence of the fact that the real estate was purchased by earnings of the wife, earned while the marriage relation existed, then the findings and judgment of the lower court must be upheld here, unless by chapter 14, Laws 1884, compiled as section 1087, C. L. 1884, and section 1509, C. L. 1897, the earnings of the wife were made her separate estate.

[1] By section 10, chapter 37, Laws 1907, it was provided, among other things:

“But whenever any property is conveyed to a married woman by an instrument in writing the presumption is that title is thereby vested in her as her separate property.”

Because of this statute appellee assumed the burden of proof in the trial court upon the theory that the above statute was only a rule of evidence; that the presumption which had theretofore existed that all property...