Christmas v. Cowden.

• Decision Date: 31 July 1940
• Docket Number: No. 4468.,4468.
• Citation: 44 N.M. 517,105 P.2d 484
• Parties: CHRISTMASv.COWDEN.
• Court: New Mexico Supreme Court

44 N.M. 517

105 P.2d 484

CHRISTMAS

v.COWDEN.

No. 4468.

Supreme Court of New Mexico.

July 31, 1940.Rehearing Denied Sept. 30, 1940.

Appeal from District Court, Lea County; James B. McGhee, Judge.

Suit to quiet title by Annie L. Christmas against Edd Cowden and others.From a judgment and decree for plaintiff, the named defendant appeals.

Affirmed.

A purchaser of land takes at his peril when inquiry from one in possession, either the owner or another claiming under him, would disclose an interest not of record.

Hervey, Dow, Hill & Hinkle and W. A. Dunn, all of Roswell, and Whitaker, Perkins & Turpin, of Midland, Tex., for appellant.

Atwood & Malone, of Roswell, for appellee.

MABRY, Justice.

This suit involves title to certain tracts of land in Lea County, formerly only grazing lands but of recent years they have become of great value because they lie in the midst of considerable and profitable oil development.It will not be necessary to particularly describe the land or any of the individual tracts except to denominate them as the parties have, as coming under groups 1 and 2.Group 1 contains an area of approximately 120 acres, and group 2 embraces an area of 80 acres, all being within an area measured by the extent of two township and two range lines.Appellee Christmas filed this suit to quiet title against appellant, and others not necessary to mention, obtained judgment and decree quieting her title as to all of the tracts involved, and appellant Cowden brings this appeal.

Appellant, as defendant below, interposed two defenses to appellee's claim of title: (a) That he is the owner in fee simple of all the lands through title acquired by adverse possession by his predecessors in title, either under the New Mexico statute in force prior to the amendment of 1899 when color of title and payment of taxes were made a prerequisite, by the common law twenty year statute of limitations (21 Jac. 1), or by virtue of the adverse possession statute(Sec. 83-122, N. M.Comp.St.1929) requiring color of title and payment of taxes.No reliance has been placed upon the tax paying feature, however, and this point will not be further noticed.And (b), that insofar at least as the tracts in group 1 are affected, that appellee's predecessors in title, Thomas J. Cowden, and his heirs at law, were never the owners in fact of any of the tracts of land, but held legal title only as trustees for the Cowden Cattle Company, a co-partnership, and the individual members thereof, 7/10 of whose interests in all of the lands involved herein, if not all of said interests, appellant had purchased and then and now owns.

It appears that appellee, some ten years prior to the time of filing this suit, had filed and prosecuted to successful determination three other separate suits to quiet title to these lands; but that appellant and no member of the Cowden Cattle Company co-partnership or their heirs or successors in title were directly made parties.These three earlier suits each involved some parts of these tracts, but all of the three suits embraced as a total all the lands in question, and in said suits appellee named as defendants certain others who were found upon, or were using, the lands in question.The interests of these other parties, not now important, were wiped out by the separate decrees of these separate suits, in which said parties were defaulted for want of appearance and answer.If appellant is precluded by any of these said former suits and decrees, it is because he failed to respond and contest appellee's claim under notice and process directed to him as an “unknown claimant”, or “unknown owner”.

The Cowden Cattle Company, otherwise known and designated for years simply as “The Cowdens”, came into the country about the middle eighties and there operated a cattle business and ranch, eventually extending over a wide area in southeastern New Mexico, including the area surrounding and in which is included some or all of the tracts here in question.There is no definite and satisfactory proof as to just when the Cowdens did commence their ranching operations and the exact area and lands embraced therein; but, by 1919, at least, the partnership had broken up and their operations had ceased.

Appellee Christmas in the trial below showed, as support for her title and as against the claim of appellant Ed. Cowden, first, that she had secured quit-claim deeds from the heirs of Thomas J. Cowden, deceased, with the records in Lea County showing no title in or claim of any kind upon, any of the lands in question, so far as appellant or his predecessors in title were concerned; and, second, that any claim which appellant may have had by virtue of any claim acquired through title by adverse possession on the part of his predecessors in title, or otherwise, did not survive appellee's three suits to quiet title hereinbefore mentioned.

[1]Appellant, in addition to his other defenses hereinbefore mentioned, vigorously resists appellee's claim that he is cut off by her former suits to quiet title against him as an unknown claimant, and urges that the evidence, and some findings of the court, sustain his contention that at the time of the purchase by quit-claim deeds and the institution of the suits to quiet title, there were persons upon or occupying the land in question under and through appellant or his predecessors in title, and that proper inquiry of these occupants and users of the land would have disclosed such fact, and that, therefore, he and his predecessors in title, or their heirs, should have been made parties by designation other than as “unknown”claimants or owners.It is clear that at any time material there was nothing of record in Lea county, where the lands are situated, to put appellee upon notice of any outstanding claim of appellant or any one through whom he claims, though, as to a part of the land, a deed from the heirs of Thomas J. Cowden to appellant's predecessors in title had theretofore been executed and delivered, but it was recorded in Eddy and not in Lea county, and therefore was ineffective as constructive notice.

[2][3]We know that the interests of partiesdefendant cannot be cut off in such suits where designated and served constructively only as “unknown owners”, if they are in possession.Pankey v. Ortiz, 26 N.M. 575, 195 P. 906, 30 A.L.R. 92.Possession by a tenant is, of course, equally good possession under this rule.And, a purchaser likewise takes at his peril when inquiry from one in possession, either the owner or another claiming under him, would disclose an interest not of record.McBee v. O'Connell et al., 19 N.M. 565, 145 P. 123.

[4]The trial court made certain findings holding appellee had no knowledge or notice of appellant's claim and likewise absolved her of the charge of failure to further inquire of the occupants as to any other interest in or claim to the property.Do such findings have substantial support in the evidence, and how shall we appraise such ultimate findings of fact viewed in the light of certain finding of evidential fact which appellant claims impels a contrary result?

Appellant apparently places his strongest reliance upon this question of notice to appellee through her husband and agent, prior to and at the time of bringing suits to quiet title and when she negotiated for the deeds from the heirs of Thomas J. Cowden.He says in his reply brief that “on the determination of this single issue the appellant might rest his whole case, did his counsel deem they could rightfully waive other defenses which they esteem to be valid.”While the question of notice is important and was relied upon as one of the principal defensive weapons of appellant in the trial below, it may not be the principal point in the case.It certainly is not the only one.

But to first dispose of that question: The trial court made findings of fact which are supported by substantial evidence to the effect that appellee Christmas had no notice such as would bind her, as to any claims on the part of appellant or his predecessors in title at the time she secured her deed or at the time she filed or prosecuted to conclusion her suits to quiet title hereinbefore referred to.Appellant challenges these findings as not supported by substantial evidence.“Are the material facts bearing on notice based on evidence from which different or conflicting inferences might reasonably be drawn?”appellant asks.He analyzes the testimony upon this point in an effort to persuade that they are not.

Appellant complains that as to most, if not all of the tracts in question, there was some character of occupancy at the time appellee, through her husband and agent, made inquiry to determine what, if any, rights the occupants claimed prior to securing the deeds from the Thomas J. Cowden heirs, or prior to instituting suits to quiet title.A proper inquiry to ascertain under whom, if anyone, such occupants were holding would have put appellee on inquiry, he says.We do not deem it necessary to say more in this connection than to point out that the court found appellee did make inquiry in all cases where possible, and where there was occupancy, as to what claim, if any, such occupants were in possession of or upon the land, and that nothing disclosed by the inquiries lead to any knowledge or information which would have called for further precaution by appellee.

We have examined the evidence in this respect and determine that it will support such findings.The trial court apparently felt that, as to any of the tracts and as to any one actually in possession at the time of purchase by quit-claim deeds, or just prior to the institution of the suits to quiet title, when appellant was reached only by process directed to “unknown claimants”, that appellee puts herself within the rule announced in McBee v. O'Connell, 19 N.M. 565, 145 P. 123.No one claimed to be holding as tenant under appellant or any of...