Bradford v. Armijo.

• Decision Date: 28 July 1922
• Docket Number: No. 2390.,2390.
• Citation: 210 P. 1070,28 N.M. 288
• Parties: BRADFORDv.ARMIJO.
• Court: New Mexico Supreme Court

28 N.M. 288

210 P. 1070

BRADFORD

v.ARMIJO.

No. 2390.

Supreme Court of New Mexico.

July 28, 1922.Rehearing Denied Dec. 11, 1922.

Syllabus by the Court.

Section 4246, Code 1915, held to authorize the district court to review the findings of a referee upon proper exceptions thereto, and that such findings are not unassailable, notwithstanding they may be supported by substantial evidence.

In the absence of objections to the reference of cause to a referee, consent thereto will be presumed.

Section 4246, Code 1915, is also authority for this court to review the findings of the district court upon disputed questions of fact, where the district court has not seen and heard the witnesses.

The evidence in regard to the genealogy of appellant's grantor examined, and held to show that the district court committed error in holding that appellant's grantor had no title.

A question not presented to the district court will not ordinarily be considered here.

In order to show ouster of one cotenant by another, there must ordinarily be express denial of the title and right to possession of the fellow tenant, brought home to the latter openly and unequivocally.

The evidence of actual ouster of appellant's grantor by his cotenant examined, and held to be sufficient to show ouster, and to start the running of the statute of limitations in behalf of the cotenant in possession.

The evidence in regard to continuous adverse possession by a cotenant examined, and held to be of the same character as at the time of the ouster of the cotenant from that time to the bringing of this suit.

A tax deed issued under the provisions of chapter 62, Laws 1882, the pertinent provisions whereof appear as sections 2892 and 2893, Comp. Laws 1884, and as sections 4100 and 4101, Comp. Laws 1897, is held to be color of title.

The evidence in behalf of appellee in regard to his holding under color of title for the required statutory period of 10 years examined, and held to be insufficient to entitle appellee to claim the title, under section 3364, Code 1915.

The evidence in behalf of appellee as to his holding of the premises in question in adverse possession for the required statutory period examined, and held, that it fails to establish any right in appellee under the provisions of section 3365, Code 1915.

Appeal from District Court, Sandoval County; Raynolds, Judge.

Suit by J. L. Bradford against Policarpio Armijo. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

See, also, 25 N. M. 456, 184 Pac. 708.

The evidence in behalf of appellee as to his holding of the premises in question in adverse possession for the required statutory period examined, and held, that it fails to establish any right in appellee under the provisions of section 3365, Code 1915.

Catron & Catron, of Santa Fé, for appellant.

George S. Downer and W. A. Keleher, both of Albuquerque, for appellee.

PARKER, J.

On the 20th day of July, 1769, Pedro Fermin de Mendinueta, the Govvernor and Captain General of the Province of New Mexico granted to Luis Jaramillo the property involved in this litigation, and which is known as the Agua Salada, or Luis Jaramillo land grant. On August 14th of the same year Antonio Sedillo, the Chief Alcalde of the province of Laguna, in pursuance of the order of the Governor and Captain General, placed the grantee, Luis Jaramillo, in possession of the grant. On August 23, 1893, this grant was confirmed by the Court of Private Land Claims of the United States. On November 15, 1909, patent was issued by the United States for the land in question, granting the same unto the heirs, legal representatives, and assigns of the said Luis Jaramillo. On August 18, 1914, plaintiff filed his complaint in the district court of Sandoval county for a partition of said premises, alleging that he was the owner in fee simple, as tenant in common, of an undivided one-half interest in and to the tract of land. The complaint is the ordinary complaint in partition, and contains no unusual features.

The defendant, Policarpio Armijo, answered the complaint, alleging that he was the sole and absolute owner in fee simple of all the premises involved. He further alleged that for more than 20 years before the commencement of the action he had been in possession of the lands and premises involved, and had had full use and occupancy and possession thereof during all said period, and had been holding and claiming the same by virtue of deeds of conveyance thereof, purporting to convey an estate in fee simple, and that during all of said period of time, in which he had so held the possession and occupancy of said land, neither the plaintiff, nor any person from, through, or under whom the plaintiff claimed, nor any person whomsoever, had made claim to the said lands, and that no suit, either at law or in equity, or otherwise, had been made, begun, or filed by or on behalf of the plaintiff, or his assignors, or any person whomsoever claiming or purporting to claim any right, title, or interest in or to the said property, down to the time of the commencement of this action.

The defendant further answered that for more than 20 years prior to the commencement of the action he had been in actual, open, visible, notorious, continuous, and exclusive possession of the premises described in the complaint under claim of right thereto, adverse and hostile to the claims of any and every other person whomsoever, holding and claiming title to said premises under any by virtue of various divers deeds to him conveying, and purporting to convey, full title in fee simple thereto, and that no action, claim, demand, or other legal proceedings had been brought or instituted against him for the recovery of the said land, or any claim or interest therein, during the said whole period of 20 years or more, and that this action was not brought or instituted within 10 years after this defendant came into said possession and after the commencement of his holding in the manner and form above set out. It is to be noted that in neither of these two last defenses does the defendant make any reference to the payment of taxes on the property.

The defendant further answered that he had paid out divers sums of money for taxes, and for the survey of the grant, and for attorney's fees and expenses in securing the confirmation of the grant. He prayed that the complaint of the plaintiff be dismissed, and that he recover costs of the action, or in the alternative, in the event that it should be finally determined that the plaintiff had an interest in the premises, that the same be held to be subject to the lien of the defendant for such expenditures for the protection and maintenance of the estate.

The plaintiff replied to this answer, denying the payment of the taxes, denying information as to the expenditures for taxes and other expenses, and alleging that, in the event the court should find that defendant had paid out any sums necessarily and properly expended, and for the payment of which said defendant was entitled to be reimbursed, that said amount is more than offset by the rents and profits of the said real estate which have been received by the defendant, and asking for an accounting of such rents and profits, as well as the sums paid out by the defendant, and that said rents and profits be set off against any amount necessarily and properly expended by the defendant.

The case came on for trial before the district court, and a portion of the testimony for the plaintiff was heard by the district judge. Thereupon, on February 21, 1917, the court referred the case to a referee in the following language:

“It is therefore ordered that John Baron Burg be and he is hereby appointed referee in the above-entitled cause, for the purpose of taking all proofs that may be necessary, and find facts and conclusions of law based on the evidence already taken before the court, and such evidence as such referee may take, and report all such testimony, findings of fact, and conclusions of law to the court at as early a date as possible.”

The order makes no statement as to whether the reference was with the consent of the parties, or was upon the court's own motion; but no objection appears in the record by either party to the reference, and they both proceeded to introduce their proofs before the referee without objection. The proofs having been taken before the referee, on February 27, 1918, he filed his report, in which he made findings of fact and conclusions of law, in which he found that the plaintiff was entitled to an undivided one-third interest in the property as tenant in common.

Exceptions to the report were filed by the defendant, involving nearly all of the findings. The report and the exceptions thereto came on for hearing before the court, and all of the exceptions of the defendant were sustained by the court, and the report of the referee was set aside in toto. The district court thereupon took up the case upon the proofs taken, both before himself and the referee, and the court found that the plaintiff had acquired no interest in the premises involved, and that the defendant was seized of a fee-simple title in and to the whole of the land grant. The case before us is upon appeal from this judgment.

[1] 1. The first proposition presented by appellant is that the district court erred in overturning the findings of the referee, and the argument is made that the findings of a referee, where he had the opportunity of seeing and observing the witnesses, may not be overturned by the court, where they are supported by any substantial evidence. Counsel cites Field v. Romero, 7 N. M. 630, 41 Pac. 517; De Cordova v. Korte, 7 N. M. 678, 41 Pac. 526; Gentile v. Kennedy, 8 N. M. 347, 45 Pac. 879; Pueblo of Nambe v. Romero, 10 N. M. 58, 61 Pac. 122; Bank v. McClellan, 9 N. M. 636, 58 Pac. 347. These cases fully sustain the proposition for which they are cited, namely,...