Beals v. Ares.

CourtSupreme Court of New Mexico
Citation25 N.M. 459,185 P. 780
Docket NumberNo. 2221.,2221.
Decision Date23 October 1919

25 N.M. 459
185 P. 780


No. 2221.

Supreme Court of New Mexico.

Oct. 23, 1919.Rehearing Denied Nov. 29, 1919.

[185 P. 780] Syllabus by the Court.

The prayer for relief is not a part of the complaint, and cannot be considered as adding to the allegations.

Where, in a divorce suit, the complaint alleged that the plaintiff therein had purchased from the defendant, his wife, all her interest in the community property and her separate property for an adequate consideration, and contained no allegation as to an adverse claim, no issue in regard to the property rights of the parties was tendered by the complaint, and a decree entered therein purporting to quiet the title of the real estate in and to the husband was without the issues tendered by the pleadings; hence was not res adjudicata as to the property rights of the parties.

Under the civil law of Spain and Mexico the wife forfeited her matrimonial gains (1) when she had been guilty of adultery; (2) when she had abandoned her husband without his consent; and (3) when she had joined some religious sect and therein married or committed adultery.

The case of Barnett v. Barnett, 9 N. M. 205, 50 Pac. 337, which held that the civil law [185 P. 781] of Spain and Mexico relative to property rights of the husband and wife was in force in this jurisdiction after the adoption of the common law and the repeal of section 1365, Comp. Laws 1884, in 1891 (Laws 1891, c. 68), overruled. Held, that since the adoption of the common law in 1876 (Laws 1876, c. 2, § 2) as the rule of practice and decision by the Legislature of the territory the common law, in the absence of statute, is the rule of decision in this jurisdiction; that by the adoption of the common law the civil law was completely supplanted except as it had been incorporated into the statutes of the territory. Strong v. Eakin, 11 N. M. 107, 66 Pac. 539; Reade v. Lea, 14 N. M. 442, 95 Pac. 131, which followed the Barnett Case, overruled in so far as such cases hold that the civil law governing property rights of husband and wife is in force in this jurisdiction.

Since the adoption of the common law in New Mexico it is as much the rule of decision in this state as in those in which it was the law from the beginning of their political existence.

When the Legislature in 1876 (Laws 1876, c. 2, § 2) adopted the common law as the rule of practice and decision, the whole body of that law, as limited in the case of Browning v. Estate of Browning, 3 N. M. (Gild.) 659, 9 Pac. 677, came into this jurisdiction. Where it found a statute counter to its provisions, it yielded to the statute, but it gave way only in so far as the statute conflicted with its principles. In so far as was possible it operated in conjunction and harmony with the statutes. If a statute conflicted with it, it bided its time, and upon repeal of the statute became again operative.

The statutes in force in this jurisdiction regulating property rights of husband and wife were patterned after the civil law of Spain and Mexico, and the courts of the state would look to the civil law for the purpose of interpreting and expounding the statute, but provisions of the civil law on the subject not incorporated into the statutes are not in force in this jurisdiction.

Dower, under the common law, was the portion of lands or tenements which the wife had for the term of her life of the lands and tenements of her husband after his decease for the sustenance of herself and the nurture and education of her children.

[Ed. Note-For other definitions, see Words and Phrases, First and Second Series, Dower.]

The statutes of the estate (sections 2774 and 2781, Code 1915, and Chapter 37, Laws 1907) construed. Held, that under these statutes the wife has an interest in the community property equal with that of the husband; that the husband by the statute, while made manager and agent of the community, has no greater interest in the property than the wife; that the British statute (13 Edw. 1, Stat. 1, c. 34) under which the wife forfeited her right of dower by willingly leaving her husband and living in a state of adultery, has no application in this jurisdiction, because at common law the wife had no interest in the property of her husband, but merely an expectancy. The statute referred to not being applicable, and there being no statute in this state forfeiting the wife's interest in the community property by the commission of adultery, no authority exists in the court to divest her of her interest for such cause.

In the absence of a statute conferring upon the court power to apportion the community property between the spouses, giving to the one a greater interest therein than such party had in the community, the court has no such power.

Section 2778, Code 1915, construed. Held, that the statute does not authorize the court to apportion the community property between the spouses in its discretion; that the statute authorizes the court to set apart out of the property of the parties such portion thereof as may be required for the support, maintenance, and education of the children, and to set apart such part of the husband's property as alimony as may be necessary for the support and maintenance of the wife.

Section 2750, Code 1915, which authorizes the husband or wife to enter into any engagement or transaction with the other respecting property which either might, if unmarried, subject, in transactions between themselves, to the general rules of common law which control the actions of persons occupying confidential relations with each other, construed. Held that, where the husband enters into an agreement with his wife whereby she transfers to the husband her interest in the community property for a grossly inadequate consideration, the husband, in regard to the transaction, stands in the position of trustee, and he owes to the wife the duty of a full and fair disclosure as to the value of the property, and he must pay an adequate consideration therefor.

Persons standing in confidential relations towards others cannot entitle themselves to hold benefits which those others may have conferred upon them, unless they can show to the satisfaction of the court that the persons by [185 P. 782] whom the benefits have been conferred had competent and independent advice in conferring them.

Where a husband, in contemplation of a divorce, through his attorney, made a property settlement with his wife by which he acquired from her her interest in community property, worth approximately $100,000, for $4,000, the burden was upon the husband, in an action by the wife to set aside the deeds and contracts, to show: (a) The payment of an adequate consideration; (b) full disclosure by him as to the rights of the wife and the value and extent of the community property; and (c) that the wife had competent and independent advice in conferring the benefits upon the husband.

Appeal from District Court, Eddy County; McClure, Judge.

Action by Trannie L. Beals (formerly Trannie L. Ares), by J. D. Walker, her committee, against Paul Ares. Case tried by the court, which made certain findings of fact and stated conclusions of law, and entered judgment for plaintiff against defendant in a certain sum, and plaintiff appeals. Reversed and remanded, with directions.

Appellant and appellee were married in the state of Texas in December, 1894, and came to New Mexico in the fall of the year 1900, and brought with them a small number of cattle and horses, some of which were the separate property of appellant, and the remainder community property. But there was such intermingling of the separate and community property that probably in law it all became the property of the community. The parties established a ranch in Eddy county, N. M., and engaged in stock raising, which proved very profitable. On May 28, 1915, they owned real estate and personal property of the value of $150,000, more or less, subject to certain indebtedness then owing. Four children had been born to them, all boys, being of the ages of 15, 16, 18, and 20. On that day John W. Armstrong, an attorney practicing at Carlsbad, N. M., and acting as attorney for the appellee, telephoned to the appellant that he desired to consult with her relative to the division of the property between herself and her husband, and that she could come to his office or he would come to her home. The appellant stated that she would go to his office. On the following day, May 29, 1915, the appellant did go to the office of said Armstrong. Prior to this date appellee had employed said Armstrong as his attorney to sue for a divorce upon the ground of adultery, and had authorized him to effect a property settlement with the appellant, if possible, and had also authorized C. N. Richards, his banker, to pay such money as the attorney might order when a settlement was reached, which was to be the sum of $5,000 as found by the court.

When the appellant appeared at the office of the attorney, Richards was called by telephone, and the three retired into the private office of the attorney, and said attorney told the appellant, in substance, that her husband had discovered that she had been untrue to him and was going to sue for divorce upon the ground of adultery and for a division of the property, and that he would settle the property interest with her and pay her $4,000. The wife stated that it was just as she expected, and that if it suited Paul it suited her, but that she would require in addition to the money settlement certain household furniture. The attorney mentioned had prepared, prior to appellant's arrival, a contract, settling such property rights, bill of sale for personal property, and deeds for the real estate, and upon her arrival the papers were delivered to her for examination. She was told what they were, she read them over, and the papers were changed after her examination to insert the household furniture above mentioned, as required by her,...

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