Crary v. Field

• Decision Date: 02 October 1897
• Parties: CRARYv.FIELD et al.
• Court: New Mexico Supreme Court

9 N.M. 222

50 P. 342

CRARY

v.FIELD et al.

Supreme Court of the Territory of New Mexico.

Oct. 2, 1897.

Error to district court, Bernalillo county; before Justice N. C. Collier.

Suit by Casiano Montano De Sanchez and husband against Harriet E. Crary and husband. On the death of both plaintiffs and of the husband of Harriet E. Crary, the suit proceeded in the name of Neill B. Field, executor of Casiano Montano De Sanchez, and another, against Harriet E. Crary. There was a judgment for plaintiffs, and defendant brings error. Reversed.

It is claimed by defendants in error that Miguel Montano, on the 5th day of October, 1862, acquired title, by deed from Jose Serafino Ramirez, Tomas Caveza De Baca, and Jose Manuel Gallegos, to a piece of land situated in what is now the city of Albuquerque, he being at that time married to Clara Candelaria (the conveyance offered in evidence to show the acquisition of title is Plaintiffs' Exhibit 1); that a presumption of law arises from the fact of acquisition during coverture that the land became community property, and that upon the death in April, 1868, of Miguel Montano's wife, title to an undivided half interest in said tract of land at once vested in the five children of the said Montano and wife, who survived their mother. Miguel Montano and two of those children, Candelaria and Ruperta (married, respectively, to Nicolas Lucero and Nicolas Apodaca), and their husbands, conveyed, by deed dated January 27, 1882, a portion of said original tract to C. W. Lewis (Defendant's Exhibit 2). Miguel Montano died on the 16th day of February, 1885. Thereafter, by subsequent conveyances, the part so conveyed to Lewis was conveyed to the plaintiff in error, Hattie E. Crary. This suit was originally brought on the 21st day of March, 1891, by Casiano Montano De Sanchez and Nicolas J. Sanchez, her husband, against the plaintiff in error and George F. Crary, her husband, to recover the land described in said deed from said Miguel Montano and others to the said Lewis (Defendant's Exhibit 2). The said Casiano Montano De Sanchez was one of the five surviving children of the said Miguel Montano and wife. Said Sanchez and his wife died after the bringing of the suit, leaving, surviving them, an infant child, James Sanchez. The death of said plaintiffs having been suggested, it was ordered that the suit be revived in the name of Neill B. Field, executor of the said plaintiff Casiano Montano De Sanchez, and in the name of her infant son, James Sanchez, by the said Neill B. Field, his statutory guardian and next friend. The death of George F. Crary having been subsequently suggested, the suit proceeded in the name of the said Neill B. Field, as such executor, and said James Sanchez, by said Field, as his guardian and next friend, as plaintiffs, against the plaintiff in error. Hattie E. Crary, as defendant. The defendants had, previous to the revival of said cause and the death of the parties, filed a plea of the general issue to the declaration, and upon this issue the cause was tried, and no evidence was offered of the qualification of Neill B. Field as executor, nor was the last will and testament of his testator put in evidence to show that, as executor, he had any interest whatever in the property or the possession thereof. The only evidence in the record, besides the presumption of law, that the land alleged to have been conveyed by the persons who described themselves in the deed (Exhibit 1) as executors of the estate of Antonio Sandoval, deceased, is the form in which the deed from Miguel Montano (Exhibit 2), was executed. It is signed, “Minor Heirs of Miguel Montano [Seal],” -followed by the signatures of the two married daughters, who survived, as above stated, the death of their mother, and who united in this deed with their husbands. Upon the trial of the case, the plaintiff in error objected to the admission of Exhibit 1, purporting to be a deed from the executors of Antonio Sandoval, upon the grounds that the deed was not under seal, and that no authority from the probate court had been shown on the part of the grantors, as administrators or executors, to make said deed and convey title; that the probate court at that time had no power to authorize the making of said deed; and that, as the deed recited authority from the probate court preliminary to its admission in evidence, the authority should be shown. The court overruled the objection, and admitted the deed in evidence. No such authority from the probate court for the making of said deed was shown. It was attempted to be shown by witness Whiting, who had been probate clerk in the years 1869, 1870, and 1871, that he had found a book, which was produced on the trial, but not offered in evidence, and that was the only book of reference in the evidence, which book was labeled “Wills and Testaments,” and that that book contained no such order or authorization in the probate clerk's office. No proof was offered that there had ever been any such record or order made, and that the record was lost. There is no proof in the record as to when Miguel Montano took possession of the said tract of land, except that the evidence shows that he had a house situated on part of it, in which he lived, and was living there in the years 1864 or 1865. He may have been living there, for all the proof shows, long anterior to his marriage. There is also in evidence a deed from Miguel Montano to the said Casiano Montano De Sanchez, dated the 2d day of October, 1883, reciting that, in consideration of $312, he thereby conveyed the land described in said deed. The witness Whiting testified that the land contained in the said deed, marked “Exhibit 8,” above referred to, was a part of the tract mentioned in the said deed (Exhibit 1) to the said Miguel Montano, and that it was about half the original tract in area, and that in 1883, when this deed was executed, that and other pieces of land, parts of the original tract in possession of, and being disposed of by, the heirs of Miguel Montano, including the said Casiano, largely exceeded one-tenth interest in the whole tract. The records of the probate court, offered in evidence by plaintiff in error, show that Miguel Montano took out letters of administration on the estate of his wife on the 22d day of April, 1868, but they do not show that there has ever been any final settlement of said estate or any inventory thereof. All the records found in the probate court relating to this administration were produced upon the trial. See Exhibit 6. Upon the death of Miguel Montano, Nicolas J. Sanchez took out letters of administration, but the records of the probate court do not show that any inventory of assets or indebtedness was made, or that anything else took place except the mere granting of letters of administration; and there is no evidence as to the condition of the estate of the marriage community of Miguel Montano and wife as to the assets and debts at the time of her death, or subsequently, at the time of his. Upon the close of the trial, upon this state of the record, the court instructed the jury to find a verdict for the plaintiffs for an undivided one-tenth interest in the piece of land described in the declaration. Plaintiff in error filed a motion for a new trial, alleging that the verdict was contrary both to the law and to the evidence, which motion was overruled.

Assignments of error: “Now comes the plaintiff in error, and assigns as error committed by the court in the trial of said cause, by the court below, the following, to wit: First. The court erred in admitting in evidence, over the objection and exception of the plaintiff in error, Exhibit 1, the same being deed from administrators of the estate of Antonio Sandoval to Miguel Montano. (Page 15 of Transcript.) Second. The court erred in admitting, over plaintiff in error's objection and exception, the testimony of Nicolas Lucero as to the ownership of the land in question and adjoining lots. (Transcript, pages 16, 17, and 18.) Third. The court erred in similarly admitting the testimony of Major H. R. Whiting (Transcript, pages 26 and 27) in regard to book labeled ‘Wills and Testaments,’ said book not having been offered in evidence, and not being material if it had been offered, under the statement of counsel made at page 25 of Transcript, and the testimony of the said Whiting not tending to supply any lost record of said court containing any order authorizing the sale of said property by the administrators of the estate of Antonio Sandoval, deceased, and no foundation having been laid by proof that any such record did exist. Fourth. The court erred in directing a verdict in favor of both plaintiffs in said cause, the evidence not showing any right in the executor of Casiano M. Sanchez, deceased, to recover. Fifth. The court erred in directing a verdict in favor of the plaintiffs in said cause, because there was evidence to go to the jury tending to show that Casiano M. Sanchez, deceased, the mother of the infant plaintiff, had received her full share of her mother's interest in the community estate of her deceased father and mother, Miguel Montano and wife. Sixth. The court erred in giving instructions to the jury to find a verdict for the plaintiffs, said verdict not being sustained by the evidence in said cause. Seventh. The court erred in many other particulars, apparent upon the face of the record.”

In the absence of any statute of this territory in 1868, determining the rights of a child in the estate of a mother, dying at that time, leaving the father surviving her, they must be determined by the Spanish law on the subject so far as it was in operation in the territory at that time.

Childers & Dobson, for plaintiff in error.

Felix H. Lester and Frank W. Clancy, for defendants in error.

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

It becomes necessary on the consideration of this cause to pass upon the rights of the...