Coleman v. Bell

• Decision Date: 08 January 1887
• Citation: 12 P. 657,4 N.M. 21
• Parties: COLEMAN and othersv.BELL and others.
• Court: New Mexico Supreme Court

4 N.M. 21

12 P. 657

COLEMAN and others

v.BELL and others.

Supreme Court of the Territory of New Mexico.

January 8, 1887.

Error to the district court, San Miguel county.

Ejectment. Trial without a jury. Judgment that plaintiffs obtain possession of the lands on payment of the sum of $500 to the defendants for improvements made by them. Plaintiffs bring error.

In an action of ejectment where the defendant obtained judgment for the difference between the value of the improvements on the premises and the mesne profits, while the statute is not explicit and does not in terms make it the duty of the plaintiff to raise the issue, as the provision of the statute is obviously for his benefit to enable him to elect whether he will accept the value of the land without the improvements rather than pay for the improvements, the duty was upon plaintiff to have such issue raised and decided.

Wm. Breeden and Louis Sulzbacher, for plaintiffs in error.

Lee & Fort, for defendants in error.

HENDERSON, J.

This was a suit in ejectment, brought by plaintiffs in error, to recover possession and right of his wife, Fannie Coleman, of a certain lot of land in Las Vegas, against defendant in error. It was commenced at the March term, 1884. Defendants appeared, and entered their plea of not guilty. By stipulation of the parties in writing a jury was waived, and a trial had before the court. The trial began at the March term, 1884, but was not completed until the March term, 1885. The defendants obtained leave to file notice of their claim of permanent improvements, and to have same assessed by the jury. The claim and notice were filed in proper time, to which the plaintiffs replied, and filed notice that they would claim rents and profits of the premises while held by defendant. The stipulation filed by which a jury was waived is in the words following, to-wit: “It is hereby stipulated and agreed, between the plaintiffs and defendants to the above-entitled cause, that the said cause shall be tried before the court, without the intervention of a jury, and that a jury is hereby waived, and that the court make special findings as to the law and facts on all material questions that may be reviewed, and that either party shall have the right to take said cause to the supreme court of this territory, and have the same reviewed, the same as if it had been tried by a jury, and, especially, the said supreme court may review the special findings of the court as to the law and facts, if asked for by either party.” This agreement was signed by counsel of the respective parties. The defendants obtained leave therefor, and filed an additional plea, setting forth more fully than in the notice his possession under a deed conveying the title to him, and that he had “made divers valuable improvements upon the said premises, to-wit, of the value of one thousand dollars,” and prayed to have the value of his said improvements assessed in this form as of the date of the judgment to be given against him for the possession thereof, in case such judgment shall be given, and that the value of such improvements be adjudged a lien upon the land.

The findings of the court, as they appear upon the record, are as follows:

“That said plaintiffs are entitled to the possession of the premises described in the declaration; that the amount of mesne profits accrued to said defendants for the said premises is three hundred dollars; and that the value of the permanent improvements made upon said premises by said defendant is eight hundred dollars; and that defendant shall recover of said plaintiff the sum of five hundred dollars, the difference of the value of the improvements and the mesne profits; and thereupon the said plaintiff gave notice of a motion for a new trial and an arrest of judgment.”

A motion for a new trial was made and overruled. Plaintiff then moved an arrest of judgment in these words: “And now come the plaintiffs, by their attorney, and move the court to arrest the judgment in said cause upon the finding in favor of said defendants, for the value of the alleged improvements upon the premises in question, because the said second plea is unauthorized by law, and no judgment in favor of said defendants in said plea can be lawfully entered. And for other errors apparent upon the record in said cause.”

This motion was also overruled. Then follows a judgment in favor of the plaintiff for possession of the premises in suit, and $500 for the defendant on account of permanent improvements. The plaintiffs under this judgment were required to pay the $500 adjudged to defendants before the writ of possession should issue. An appeal was prayed and granted. An appeal-bond was filed in the sum of $1,000; and that portion of the judgment in favor of defendants was superseded, and execution stayed. The writ of possession was,...