Davidson v. Enfield.

• Decision Date: 06 October 1931
• Docket Number: No. 3600.,3600.
• Citation: 35 N.M. 580,3 P.2d 979
• Parties: DAVIDSON et al.v.ENFIELD.
• Court: New Mexico Supreme Court

35 N.M. 580

3 P.2d 979

DAVIDSON et al.

v.ENFIELD.

No. 3600.

Supreme Court of New Mexico.

Oct. 6, 1931.

Syllabus by the Court.

Assignees of oil lease under assignment transmitted to commissioner of public lands, but withdrawn before commissioner acted thereon, may institute contest before commissioner to enforce claim to assignment (Comp. St. 1929, § 132-181).

Where assignment of oil and gas lease is transmitted to commissioner of public lands for approval, and later, and before action by the commissioner, withdrawn by direction of the assignor, the assignees, claiming said withdrawal to be wrongful and violative of the agreement of the parties, may institute contest before the commissioner under section 132-181, Comp. 1929, to enforce their claim to such assignment.

Supreme Court may review entire record to determine sufficiency of evidence, where much testimony is by deposition or transcript.

Where much of the testimony is by deposition or a transcript of testimony of absent witnesses taken at a former hearing before another tribunal, this court may review the entire record to determine whether the judgment rendered by the trial court is supported by a preponderance of the evidence.

Evidence held to support judgment sustaining assignor's withdrawal of assignment of oil lease transmitted to commissioner of public lands.

Evidence reviewed, and held to preponderate in support of the judgment rendered.

Appeal from District Court, Lea County; Richardson, Judge.

Proceedings by C. J. Davidson and another against John B. Enfield, in the form of a contest before the commissioner of public lands. From an adverse decision by the commissioner, defendant appealed to the district court, and, from the judgment of the district court in defendant's favor, plaintiffs appeal.

Judgment of district court affirmed, and cause remanded.

Where assignment of oil and gas lease is transmitted to commissioner of public lands for approval, and later, and before action by the commissioner, withdrawn by direction of the assignor, the assignees, claiming said withdrawal to be wrongful and violative of the agreement of the parties, may institute contest before the commissioner under section 132-181, Comp. 1929, to enforce their claim to such assignment.

Roberts, Brice & Sanchez, of Santa Fé, for appellants.

Reid, Hervey, Dow & Hill, of Roswell, for appellee.

SADLER, J.

This appeal originated in the form of a contest before the commissioner of public lands of the state of New Mexico, pursuant to the provisions of section 132-181, Comp. 1929. From an adverse decision by the commissioner, the appellee prosecuted an appeal to the district court of Lea county, where the lands involved are located. In such court the appellee prevailed, and the appellants now by appeal have removed the cause to this court for review.

In July, 1928, the appellee was the holder by assignment from one Wallace, trustee, of an oil and gas lease on some 19,000 acres of land located in Lea county, N. M. This and other acreage had been assigned to Wallace, trustee, by one H. T. Orcutt, out of state oil and gas lease No. 1091, theretofore issued by the commissioner of public lands to said Orcutt. The assignment to appellant included lots 1, 2, 3, 4, 5, and 6, section 5, township 21 south, range 36 east, being the lands covered by a further assignment here in controversy.

About July 15, 1928, at Fort Worth, Tex., the appellants agreed to purchase from appellee an assignment on the acreage just described at $12.50 per acre, or a total consideration of $2,959.50. The terms were cash in exchange for the assignment. Appellee declined to furnish an abstract of title, leaving it to the purchasers to satisfy themselves by wire to the commissioner of public lands, or otherwise, as to seller's right to make the assignment. On July 19th thereafter the appellee appeared with the assignment at the office of the appellant Davidson in Fort Worth, where he found both appellants and demanded the purchase price, offering to deliver the assignment in exchange therefor.

Following the commencement of negotiations for the assignment and on July 15, 1928, appellant Doran, who had a personal acquaintanceship with the commissioner, wired him at Santa Fé of his proposed purchase, and inquired in substance if appellee could deliver good title. An answer wire was received the following day saying acreage stood in appellee's name with rentals paid to October 2d, and that he saw no reason why reassignment could not lawfully be made by him. In the meantime, rumors had reached appellants that there was some cloud on state lease No. 1091.

Accordingly, when appellee appeared with his assignment, in modification of the immediate cash transaction originally contemplated, it was agreed orally between the parties that the purchase price in cash together with duplicate copies of the assignment should be deposited in First National Bank in Fort Worth; that the assignments should be transmitted by said bank to the aforesaid commissioner with instructions to approve and return one copy to said bank, upon the receipt of which by the bank the returned and approved copy was to be delivered by it to appellants and the money turned over to appellee. If the commissioner failed to approve, upon its return to the bank the assignment was to be redelivered to appellee and the money restored to appellants.

The three parties went in person to the bank about 4:30 p. m. on the afternoon of July 19th, after banking hours, for the purpose of effectuating this arrangement. There Davidson's check, bearing on its face a memorandum of its purpose, payable to Enfield's order, was indorsed by him and delivered to the bank, converted into a cashier's check, and held as cash pending the return of the assignment delivered to it at the same time by Enfield. The following day, in accordance with the instructions of the parties, the bank forwarded the duplicate copies of the assignment to the commissioner at Santa Fé requesting approval and the return of one copy for the assignees.

Acknowledging receipt of the assignment under date of July 25, 1928, the commissioner advised the bank of notice of contemplated suit affecting these lands delivered to him in the form of a letter by Catron & Catron, attorneys of Santa Fé, on July 20th, and stated that no action looking to approval could be taken for ten days thereafter. On July 31st the commissioner further advised the bank by letter that on July 28th he had been served with copy of complaint and lis pendens in a suit pending in the district court of Lea county instituted by Walter J. Wallace and others against appellee, Enfield, involving these lands, and that action on the approval of assignment to appellants theretofore transmitted would have to be deferred pending the outcome of such litigation. Upon receipt of this letter and on August 1, 1928, the bank wired the commissioner requesting him to return the assignment. On August 3d both the bank and Enfield again wired the commissioner making a similar demand. The papers were returned to the bank, and on August 19th, upon demand therefor by Enfield, the duplicate assignments were returned to him. Within a few days thereafter the cash deposit was by the bank passed to the credit of Davidson, who was one of its depositors.

Thereupon this contest proceeding was initiated before the commissioner of public lands seeking to have the commissioner declare appellants the owners of an oil and gas lease on the 240 acres in question by virtue of said assignment. The subsequent proceedings whereby the cause reached this court through appeal are set out hereinabove.

[1] We are confronted at the threshold of this case by a jurisdictional consideration. The appellee questioned in the first instance the jurisdiction of the commissioner of public lands to entertain a proceeding of this kind. Ordinarily the purpose of an appeal is to review errors assigned by the appellant, and the appellee in whose favor the judgment appealed from has been rendered is in no position to complain. An exception to this principle is recognized by section 2 of rule XV heretofore adopted by this court, but the jurisdictional point raised by appellee is not within the purview of that rule. The want of jurisdiction in the commissioner to hear the contest, if it is wanting, is over the subject-matter of the proceeding. If he had no jurisdiction, then, of course, neither the district court of Lea county, nor this court, to which the cause was removed by successive appeals, has ever acquired any. Pointer v. Lewis, 25 N. M. 260, 181 P. 428; Geren v. Lawson, 25 N. M. 415, 184 P. 216; Valencia Water Company v. Neilson, 27 N. M. 29, 192 P. 510. If such jurisdiction was lacking, two void decisions already have been rendered in this matter; and now, unless we overlook the point because suggested by a party not in a position to assign error, a third void decree impends.

Jurisdiction of the subject-matter may not be conferred by consent. It is a fundamental consideration at all stages of any proceeding, and will be noticed by the court upon its own discovery or at the suggestion of any party. From whatever source challenged, the court must pause, consider, and determine its jurisdiction before proceeding further; hence our inquiry into the subject at this time.

Jurisdiction of the commissioner of public lands to entertain this proceeding exists, if at all, under the provisions of section 132-181, Comp. 1929, reading as follows: “Any person, association of persons, or corporation claiming any right, title, interest or priority of claim, in or to any state lands, covered by any lease, contract, grant or any other instrument executed by the commissioner, shall have the right to initiate a contest before the commissioner who shall have the power to hear and determine same. The commissioner shall prescribe appropriate rules and regulations to govern the practice and...