Dye v. Crary

• Decision Date: 02 March 1906
• Citation: 13 N.M. 439,85 P. 1038
• Parties: DYE et al.v.CRARY et al.
• Court: New Mexico Supreme Court

13 N.M. 439

85 P. 1038

DYE et al.

v.CRARY et al.

Supreme Court of the Territory of New Mexico.

March 2, 1906.

Syllabus by the Court.

Matters of law determined upon a former appeal become the settled law of the case, are binding upon the court and the litigants, and cannot be reviewed on second appeal.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4358-4368.]

In order to establish an equitable estoppel against one asserting his title to real property, the party attempting to raise it must show either an actual fraudulent representation or concealment of such negligence as would amount to a fraud in law, and that the party setting up such estoppel was actually misled thereby to injury.

[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Estoppel, §§ 124-153.]

One who buys an interest in an unpatented mining claim at a void judicial sale and pays the portion of the assessment work due from the judgment debtor before the time to redeem has fully expired, taking a receipt therefor only, is not subrogated to the rights of the party seeking the forfeiture, and his payment and its acceptance prevents the forfeiture as against the judgment debtor.

Appeal from District Court, Socorro County; before Justice Frank W. Parker.

Action by Benjamin H. Dye and others against H. C. Crary and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

On the 21st day of April, 1887, Benjamin H. Dye, John D. Cockrell, and Theo. W. Heman located the Compromise lode claim in the White Oaks mining district, in Lincoln county, N. M., the property in dispute in this action. Thereafter the plaintiff B. H. Dye, one of the original locators of said claim, acquired interests by deed and otherwise until he was the owner of five-sixths of said claim; the other one-sixth being the property of the Apex Gold Mining Company, a corporation. On the 8th day of March, 1898, Jones Taliaferro commenced a suit against Dye to recover the amount due on two promissory notes for $80 and $32.47, and interest, respectively, in the district court of Lincoln county, by attachment, Dye being then absent from the territory, and the writ of attachment was levied on certain lots in the town of White Oaks, N. M., and a tract of land near said town, and notice was given by publication. Later an alias writ was issued, and the mining claim in controversy levied upon and sold under the alias writ on February 18, 1899, to Jones Taliaferro. At the time of the sale Dye had not paid his share of the assessment work for 1898, which had been done by his co-tenant, the Apex Gold Mining Company, and at the time Taliaferro received the sheriff's deed and entered into possession of Dye's interest in the mining claim the Apex Company, by T. C. Johns, had advertised for forfeiture, which time would have expired on July 5, 1899, the period in which Dye might redeem, on June 15, 1899, Taliaferro paid this money to Johns, and took his receipt therefor. Dye returned to the territory in the latter part of April, 1899, and upon his return learned that the mining claim had been sold by attachment, and that Jones Taliaferro was in possession of it as purchaser at such sale. Taliaferro leased to Crary and Heiniman with an option to buy the property, on June 5, 1900. In August, 1900, Crary and Heiniman made the discovery of rich ore and bought the property under their option contract, the deed bearing date October 1, 1900, though the price was not paid or the deed delivered until late in November, 1900. Dye in the meantime had taken no steps to ascertain the condition of the attachment proceedings; in fact, he told several parties that he had lost his interest in the Compromise, that it went to pay a debt and that he considered it well sold. During the time the option contract was in operation between Taliaferro and Crary and Heiniman he visited the property several times and told both Crary and Heiniman that he had lost his interest in the claim; after the rich discovery was made he told Crary in answer to the direct question that he had no interest in the claim and “wished him well.” As Crary expressed it. In the meantime Crary and Heiniman had expended several thousand dollars upon the claim. After making the rich discovery they obtained an abstract of title and employed an attorney to look the title up, including the attachment proceedings and the sheriff's sale thereunder to Taliaferro. After being assured by their attorney that the attachment proceedings were regular and the title good, they paid Taliaferro the $1,500 under the option contract and received a quitclaim deed to the claim. About November 20th Dye wrote Mr. Childers, an attorney at law at Albuquerque, and had him look up the attachment suit, and upon being informed by Childers that the sheriff's sale under the attachment proceedings, and the judgment in that case were void, he and Childers, to whom he had deeded an interest, commenced this suit in ejectment for the possession of the mining claim. After suit was commenced, both Crary and Heiniman, the original defendants, sold all their interest in the property and conveyed the same by deed to Jones Taliaferro, Charles Spence, and Joseph E. Spence, and afterwards Mr Harvey B. Fergusson acquired an interest in the property, and one Van Schoick also acquired an interest later, all of the defendants who are now interested having become so since this suit was instituted, and with knowledge of its pendency.

Mills, C. J., and Mcfie, J., dissenting in part.

One who buys an interest in an unpatented mining claim at a void judicial sale and pays the portion of the assessment work due from the judgment debtor before the time to redeem has fully expired, taking a receipt therefor only, is not subrogated to the rights of the party seeking the forfeiture, and his payment and its acceptance prevents the forfeiture as against the judgment debtor.

H. B. Fergusson and Elfago Baca, for appellants.

W. B. Childers, for appellees.

MANN, J.

1. At the January, 1904, term of this court this case was heard on appeal from the district court of Socorro county, from a judgment in favor of the defendants and reversed and remanded to that court for further proceedings in conformity with the opinion in the case. Dye et al. v. Crary et al., 78 Pac. 533. It was held in that opinion that there was no authority for an alias writ of attachment at the time the alias writ was issued in Taliaferro v. Dye, in the district court of Lincoln county, and that property levied upon under such writ gives the court no jurisdiction, and that consequently the judgment against Dye in that court, and the sale of the property in controversy, was absolutely void. The court having so held, whether right or wrong, it thereupon became the law of this case, and is controlling upon this court, so that the question of the validity of the alias writ and the proceedings of the court thereunder cannot be reviewed here, the evidence being substantially the same. This court, speaking through Mr. Justice McFie, in Crary v. Field, 10 N. M. 257, 61 Pac. 118, quoted with approval the following language from Phelan v. San Francisco, 20 Cal. 45. “A previous ruling by the appellate court upon a point distinctly made may be only authority in other cases, to be followed and affirmed, or to be modified or overruled, according to its intrinsic merits, but in the case in which it is made it is more than authority. It is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves.” In Flournoy et al. v. Bullock et al. (N. M.) 66 Pac. 547, 55 L. R. A. 745, Mr. Chief Justice Mills, in the opinion of the court, says: “According to well-settled principles of law and the decision of this court, in the case of Crary v. Field (N. M.) 61 Pac. 118, the former decision of this court when this case was here before on appeal (Rice v. Schofield, 9 N. M. 314, 51 Pac. 673) so far as it states the law, is the law of the case, and will not be reviewed by this court on this hearing. This seems to be the universal rule. Balch v. Hass, 73 Fed. 975, 20 C. C. A. 151; Wayne County v. Kennicott, 94 U. S. 498, 24 L. Ed. 260; Ex parte Sibbald, 12 Pet. (U. S.) 487, 9 L. Ed. 1167; Sizer v. Many, 16 How. (U. S.) 98, 14 L. Ed. 861; Corning et al. v. Troy Iron & Nail Factory, 15 How. (U. S.) 451, 466, 14 L. Ed. 768; Roberts v. Cooper, 20 How. (U. S.) 467, 15 L. Ed. 969; Durant v. Essex County, 101 U. S. 555, 25 L. Ed. 961; Stewart v. Salamon, 97 U. S. 361, 24 L. Ed. 1044. The facts presented with reference to the attachment proceedings are identical with those presented on the former appeal, and cannot now be reviewed. The law expressed in the former opinion, so long as it stands unreversed, is the settled law of this case.

2. The next question arising is whether or not defendant Dye is estopped by his actions and conduct from asserting title to the Compromise mining claim, the property in dispute, or, in other words, whether his acts have raised against him an equitable estoppel. Whether certain acts, misrepresentations or silence on the part of a person will raise an equitable estoppel against him from claiming title to real property depends largely upon the circumstances in each individual case, and such a plea is addressed to the conscience of the trial court, whether in equity and good conscience he should be allowed under the circumstances to set up and establish such a claim. True, such an estoppel may be raised in courts of law, but the principle is one of equity. Equitable estoppel is defined as: “A right arising from acts, admissions, or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged.” Bigelow on Estoppel (4th Ed.) 445. “An estoppel (which) presupposes error upon one side and fault or fraud upon the other, and some defect of which it would be inequitable for...