Brown v. Lockhart

• Decision Date: 26 February 1903
• Citation: 71 P. 1086,12 N.M. 10
• Parties: BROWNv.LOCKHART et al.
• Court: New Mexico Supreme Court

12 N.M. 10

71 P. 1086

BROWN

v.LOCKHART et al.

Supreme Court of the Territory of New Mexico.

Feb. 26, 1903.

Syllabus by the Court.

1. Alleged errors, which are not jurisdictional, will not be considered by this court on appeal, unless exceptions to them are saved.

2. Findings of the trial court as to facts in issue will not be set aside, where there is evidence to sustain them, unless they are manifestly against the evidence.

3. Where property which is claimed to be separate property is not preserved in specie or in kind, but has undergone mutations and changes, in order to sustain its separate character, it is necessary that it can be clearly traced and identified.

4. The law creates a presumption that property acquired during coverture is community property, and is subject to the payment of community debts, and this presumption casts the burden of proof upon the claimant of a separate estate. It is also a presumption of law that any debt contracted during coverture is a community debt.

Appeal from District Court, Bernalillo County; before Justice Crumpacker.

Action by C. T. Brown, receiver, against Henry Lockhart and others. Judgment for plaintiff, and defendants appeal. Affirmed.

This is a suit in equity, brought in the month of March, 1896, in the district court of Bernalillo county, by Cony T. Brown, receiver of the Socorro County Bank, against Henry Lockhart, Ellen L. Lockhart, his wife, and the Crown Point Mining Company, a corporation duly organized under the laws of the territory of New Mexico. Brown, as receiver, recovered two judgments in the district court of Socorro county against the defendant Henry Lockhart, which judgments aggregated upwards of $3,400. Executions issued against the defendant Henry Lockhart, which were returned nulla bona. This suit was brought by Brown, receiver, as a judgment creditor, in order to reach certain property standing in the name of the defendant Ellen L. Lockhart, and to subject the same to the payment of the two judgments above mentioned, upon the ground that the defendant Henry Lockhart had a beneficial interest therein. The bill alleges that in 1893 one Pilkey, acting under and pursuant to a written contract, located two certain mining claims in the Cochiti mining district, in Bernalillo county, one called the “Ellen L.” and the other the “Mammoth”; that said claims were located in the names of Henry Lockhart and other parties to the agreement, and that their names were signed to the original location notices posted on said claims; that thereafter, but before the notices were recorded, the said Henry Lockhart erased his own name therefrom, and substituted that of his wife, Ellen L. Lockhart, and that, as changed, the notices were recorded. The bill also alleges that pursuant to an agreement similar to the one above mentioned, but not in writing, made between Henry Lockhart, J. D. May, B. F. Bruce, and Charles Johnson, three other certain mining claims were also located in the Cochiti mining district, called “The Bull of the Woods,” the “Giant,” and the “Crown Point,” the name of Henry Lockhart being signed as one of the locators on the notices posted on said claims, but that he afterwards erased his name therefrom, and substituted that of his wife, Ellen L. Lockhart, and that, as thus changed, the notices were recorded; that afterwards the three claims last mentioned were conveyed to the Crown Point Mining Company, a corporation organized under the laws of the territory of New Mexico, and that stock was issued to Ellen L. Lockhart in payment for her alleged interest in said claims. This suit is, therefore, to reach the stock of this company issued to Ellen L. Lockhart, and the one-third interest which she claims to own in the Ellen L. and Mammoth claims. The answer admits that Henry Lockhart entered into the written contract, but alleges that he was only acting for his principal, his wife; denies that the Ellen L. and Mammoth claims were located in pursuance of the contract; denies that the name of Henry Lockhart was signed to the original location notices, or that he substituted his wife's name for his own, but insists that the location notices were recorded as first posted on the claims. The answer further denies that the “Crown Point,” “Bull of the Woods,” or “Giant” were located in pursuance to a contract made between Henry Lockhart, May, Bruce, and Johnson; denies that Henry Lockhart's name was signed to the original location notices, and that he erased the same and substituted his wife's name in its place, before they were recorded; and denies that the said Henry Lockhart ever owned or held any interest in said mining claims, or any of them. The answer also denies that any property standing in the name of Ellen L. Lockhart was purchased with the funds of Henry Lockhart, or with the joint earnings of himself and wife, and that the same constitutes acquest property. The cause was referred, and the evidence taken was reported to the court, who made findings of fact, to some of which findings defendants excepted, and the court entered a decree based on the findings of fact, from which decree defendants appealed to this court.

It is a presumption of law that any debt created during coverture is a community debt.

H. B. Hamilton and H. B. Fergusson, for appellants.

William B. Childers and James G. Fitch, for appellee.

MILLS, C. J. (after stating the facts).

There are 17 findings of fact in this case, to which the record shows that the defendants excepted specifically to seven, viz., the fifth, sixth, eleventh, twelfth, thirteenth, sixteenth, and seventeenth, while...