DesGeorges v. Grainger

• Decision Date: 10 August 1960
• Citation: 76 N.M. 52,1966 NMSC 13,412 P.2d 6
• Parties: Quirina DesGEORGES, Individually and Quirina DesGeorges, as Trustee under Declaration of Trust, dated
• Court: New Mexico Supreme Court

Page 6

412 P.2d 6

76 N.M. 52

Quirina DesGEORGES, Individually and Quirina DesGeorges, as Trustee under Declaration of Trust, dated August 10, 1960 and Bernice DesGeorges, a minor, by Josephine Martinez, her Sister and Next Best Friend, Plaintiffs- Appellants, v. Richard GRAINGER, Margaret M. Grainger, Frances Martin individually and doing business as Northern New Mexico Real Estate Exchange, and Founders Mutual Depositor Corporation a Colorado corporation, Defendants-Appellees.

No. 7552.

Supreme Court of New Mexico.

Jan. 17, 1966.

Rehearing Denied March 17, 1966.

Stephen A. Mitchell, Taos, Thomas J. Russell, Chicago, Ill., for appellants.

Matias A. Zamora, Ernest E. Valdez, John E. Conway, Santa Fe, for appellees Grainger.

R. Howard Brandenburg, Taos, for appellee Martin.

MOISE, Justice.

In this action plaintiffs-appellants sued for rescission and restitution of amounts paid on a contract wherein appellant, Quirina DesGeorges, agreed to purchase and defendants-appellees Grainger agreed to sell a certain piece of land in Taos, New Mexico, upon which was located La Tuatah Motel, together with personal property therein. Defendant-appellee Frances Martin was the real estate broker who negotiated the transaction. Defendant-appellee Founders Mutual Depositor Corporation had issued certain certificates representing deposits made by appellants, which certificates had been endorsed and delivered to appellee, Mutual Depositor Corporation in connection with the transaction sought to be rescinded, and in this action the return thereof to appellants was sought.

Although the complaint recites in considerable detail the evidentiary facts upon which plaintiffs base their right to rescission, it is only necessary that we notice the allegation that the sellers did not hold title to the land contracted to be sold by them. It is asserted that the land was owned by the Pueblo of Taos, and Indian tribe and community, and that legal title was in the United States for the benefit of the Pueblo. By answer, the Graingers allege that the purchaser was advised of the possible claim of the Indians and was aware of this fact, and that the contract provided for title 'as is,' and they deny that the property was owned by the Pueblo of Taos or that title was in the United States for the benefit of the Pueblo. Graingers further deny any material misrepresentation on their part. Defendant Martin asserts in her answer that she specifically informed the purchaser that part of the land on which the motel was located was Indian land. Defendant Founders Mutual Depositor Corporation filed no answer or other pleading.

A pretrial conference was held, following which a pretrial order was entered. Aside from the recitals therein concerning the issues to be tried, certain specific exhibits were ordered received in evidence. Thereafter, a trial was held werein plaintiffs presented their case and, after they had rested, motions of the defendants to dismiss under Rule 41(b) (§ 21--1--1(41)(b), N.M.S.A.1953) because of failure of proof to establish any right to relief were sustained and plaintiffs' complaint was accordingly dismissed with prejudice. This appeal followed.

Our consideration of the substantive merits of the appeal is materially blocked by the absence of findings of fact required by Rules 41(b) and 52(B) (§§ 21--1--1(41(b) and 21--1--1(52)(B), N.M.S.A.1953). None of the parties requested the court to make any findings, and the court did not do so.

Under Rule 52(B), supra, the trial court, when sitting without a jury, is required to make findings of fact. This is true even though a motion is sustained at the close of plaintiff's case. State es rel. Reynolds v. Board of County Commissioners, County of Guadalupe, 71 N.M. 194, 376 P.2d 976; Pankey v. Hot Springs Nat'l Bank, 46 N.m. 10, 119 P.2d 636; Sandoval County Board of Education v. Young, 43 N.M. 397, 94 P.2d 508. Notwithstanding the fact that the rule is stated in mandatory language directed to the court, we have held that a party who has not requested the court to make findings on any given point, is not in position to obtain a review of the evidence on such point in this court. Edington v. Alba, 74 N.M. 263, 392 P.2d 675.

Accordingly, plaintiffs find themselves confronted by this rule which they must avoid in order for us to pass upon the issue which they argue for the first time here in their reply brief. It is their position that the fundamental issue before the court is one of law involving the validity of a contract to sell real property belonging to the Pueblo of Taos, and that the evidence is undisputed and documentary in the record that the property is Indian land.

We cannot agree that the issue presented is a question of law. Without some knowledge of the facts we have no basis upon which to make a determination of the correctness of the court's ruling on the law. Our attention is directed to Boswell v. Rio De Oro Uranium Mines, Inc., 68 N.M. 457, 463, 362 P.2d 991, 995, where we stated:

'* * * It is true that under Rule 52(B) of our Rules of Civil Procedure the trial court is required, in a case tried without a jury, to find the facts necessary to support a judgment and the rule further provides for a remand for the making of findings when proper findings are not made. But an exception, born of common sense and presently germane, is made to the application of the rule. A remand is unnecessary if the missing fact required to support the judgment is documentary or appears undisputed in the record. Under such circumstances it nay be supplied by us without remand. * * *'

The situation there differed only slightly from the one here present. The court had there made findings but had failed to find one material fact which was established by documentary and uncontradicted evidence, whereas here the court made no findings at all. The court recognized that rule 52(B), supra, provides that where proper findings are not made, the case shall be remanded so that they can be made, but stated that because of a 'common sense' exception where facts are not disputed and are based on writings, remand will not be required and the missing finding will be supplied. Although it does not appear in the opinion, an examination of the file discloses that the finding which the trial court did not make but which was nevertheless supplied without a remand in Boswell v. Rio De Oro Uranium Mines, Inc., supra, had not been requested. Certain findings had been requested and had been made by the court. While the rule followed in Boswell might be applied here, we note that (1) the defendants deny that the evidence is uncontradicted or wholly documentary, and (2) where more than the supplying of an absent finding is required, and in fact a whole set of findings must be made, we doubt that we should undertake to provide them. Examples of cases where we have remanded to the trial court for the making of findings are Isaac v. Seguritan, 66 N.M. 410, 349 P.2d 126; Smith v. South, 59 N.M. 312, 283 P.2d 1073; Moore v. Moore, 68 N.M. 207, 360 P.2d 394.

It seems to us that the identical considerations which moved the court to supply a material finding not requested, based on uncontroverted documentary evidence in Boswell v. Rio De Oro Uranium Mines, Inc., supra, would, because of the public policy question hereinafter discussed, support our doing the same thing here. Since we have no findings at all in the instant case, the same common sense approach there adopted dictates that we not undertake to supply the findings, but that we remand to the trial court so that it can make them. Although this case would seem to provide ample authority for a reversal and remand for findings, additional reasons and rules which we proceed to consider are at hand.

We take note of Prater v. Holloway, 49 N.M. 353, 164 P.2d 378, a case identical with the present one in that findings of fact had neither been requested nor made, and upon appeal this court remanded the case to the lower court to make findings and conclusions. This was done under Rule 52(B)(a)(7) (§ 21--1--1(52)(B)(a)(7), N.M.S.A1953) because 'the ends of justice' so required.

We do not consider Prater v. Holloway, supra, distinguishable from the present case either on the basis that a motion to dismiss had been there filed, or because certain recitals concerning facts were contained in the judgment. It is clear from the opinion that neither of these circumstances, absent in our case, was a basis for the conclusion reached. There, as here, the case was fully briefed and before the court on its merits, and the question of the effect of the failure to request findings and of the court to make findings was directly presented and considered. Furthermore, the court explicitly stated that the recitals in the judgment did not meet the requirements of the rule so as to constitute a decision by the trial court, and no weight was accorded to them. The case is not distinguishable on any arguable basis. Prater v. Holloway, supra, was a suit for possession of land and for damages of $500.00. The reasons here present for considering the case on its merits are clearly more important and compelling than those in Prater could have possibly been The court there stated that additional reasons for its conclusions need not be stated. Here, we deem it desirable that we set forth our reasons.

The instant case, as already noted, involves a contract to purchase and to sell a piece of property claimed by the plaintiffs to be Indian land. Defendants assert various reasons why this fact, if it is a fact, would nevertheless from no basis for a recovery by plaintiffs. Whatever the true facts are, and this determination must await the findings to be made by the court, we are clear that if the property is Indian land, the contract to sell was contrary to public policy and void, and rescission would be proper. Sage v. Hampe, 235 U.S. 99, 35 S.Ct. 94, 59 L.Ed. 147, is a suit for damages...