Consol. Placers, Inc. v. Grant
Citation | 48 N.M. 340,151 P.2d 48 |
Decision Date | 14 August 1944 |
Docket Number | No. 4819.,4819. |
Parties | CONSOLIDATED PLACERS, Inc.,v.GRANT. |
Court | Supreme Court of New Mexico |
OPINION TEXT STARTS HERE
Appeal from District Court, Grant County; A. W. Marshall, Judge.
Creditor's suit by Consolidated Placers, Inc., against Michael J. Grant to set aside certain conveyances and subject the property to payment of a judgment. Judgment for plaintiff, and defendant appeals.
Affirmed.
In creditor's suit against debtor's transferee to set aside conveyance as fraudulent, refusing transferee's conclusion of law that burden was on creditor to establish existence of fraud and that existence of fraud must be proved distinctly and satisfactorily by clear and convincing evidence was not error although it was a correct statement of the law.
Alvan N. White and Clyde T. Bennett, both of Silver City, for appellant.
J. F. Woodbury and Ben Shantz, both of Silver City, for appellee.
This is a creditor's suit brought by appellee against appellant to set aside certain conveyances made by one May McGraw to appellant, Michael J. Grant, and subject the property, described therein, to the payment of its judgment. From a judgment in favor of appellee, appellant appeals.
Facts, as found by the trial court, necessary to a decision on the questions raised by appellant, are:
“The court further found that the chattel mortgage and the warranty deed were accepted and received by the defendant, Michael J. Grant, with the knowledge of the fraudulent intent of May McGraw, and with the intent on his part to assist May McGraw in and for her fraudulent purpose, and to hold the real and personal property as a secret trust for her benefit.
“Subsequent to the entry of the judgment on July 11, 1939, it was discovered that a certain parcel of the May McGraw ranch had not been included in the deed of January 31, 1939; that a transcript of the plaintiff's judgment had, by that time, been filed for record and recorded in the office of the County Clerk of Grant County, New Mexico; that to avoid the lien of plaintiff's judgment and with the intent to further defraud plaintiff, May McGraw executed a so-called ‘correction deed’ to the defendant Michael J. Grant.
“That, after the conveyance of the real estate to her brother, Michael J. Grant, May McGraw retained possession, residing thereon and treating the premises, in all respects as her own, and Michael J. Grant never took possession nor resided upon the premises so conveyed.
“No consideration was paid by Michael J. Grant for the conveyance to him of the premises; that there was no cancellation by the defendant of any written security given by May McGraw, or any written release by the defendant of any unsecured claim held by him against May McGraw.
Based upon these findings, the trial court concluded that the warranty deed executed on the 31st day of January, 1939, by May McGraw in favor of appellant, Michael J. Grant, and the correction deed executed on the 6th day of February, 1940, by May McGraw in favor of appellant, Michael J. Grant, were fraudulent and should be set aside; and that appellee was not guilty of laches in bringing its suit.
Appellant's forty-eight assignments of error are considered under seven points set forth in his brief in chief, the first of which is as follows:
The question here challenges the trial court's finding that appellee was a Colorado corporation, duly authorized to do business in the State of New Mexico; and the court's refusal to adopt appellant's first conclusion of law that the action should be dismissed for the reason that appellee failed to show that it had authority to maintain the suit.
This question was before the Territorial Supreme Court in the case of Butterfield's Overland Dispatch Co. v. Wedeles and Romero, 1 N.M. 528, where the court had under consideration the construction of Sec. 29 of Art. 12, Chapter 27, Civil Procedure and Practice, being page 198 of the Revised Statutes and Laws of the Territory of New Mexico, as follows: “The order of pleading shall be as follows, that is to say: 1st, legal exceptions; 2d, pleas in abatement, (1) to the jurisdiction as to the subject matter, (2) as to local jurisdictions, (3) as to the disability or misnomer of the person, either the plaintiff or the defendant; 3d, answer in bar of the action.”
This statute was carried forward and was incorporated in the 1929 Compilation as Sec. 105-408 of Civil Procedure, and remained a statute of pleading, practice and procedure until 1933 when it became a rule of court, following the adoption of the omnibus rule, pursuant to the passage of Chap. 84 of the 1933 New Mexico Session Laws. Section 105-408, Rules of Pleading, Practice and Procedure, 38 N.M. XVIII; State v. Beal, 48 N.M. 84, 146 P.2d 175.
[1] The foregoing rule was amended and superseded by a rule of the same number effective September 11, 1939, Rules of Pleading, Practice and Procedure, 43 N.M. IX. However, the only change made in the statute, or rule, by the amendment of September 11, 1939, was to eliminate the particular instances set forth in the statute, and the rule, in which pleas in abatement might be used. The case at bar having been filed on March 9, 1942, was pursuant to an order entered by this court September 22, 1942, 46 N.M. LXXXIV, Rules of Civil Procedure, controlled by the provisions of trial court Rule 105-408 effective September 11, 1939, 43 N.M. IX, supra. The material portions reading as follows:
“The order of defensive pleadings and motions shall be:
“By filing any of such motions or pleadings the party shall be deemed to have waived the right to file any pleading or motion of higher order.”
In Butterfield's Overland Dispatch Co. v. Wedeles and Romero, supra, the Territorial Supreme Court, in construing the statute, which later became a rule of court, under which the case at bar was tried, said:
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