Ellison v. Ellison.

Citation146 P.2d 173,48 N.M. 80
Decision Date15 February 1944
Docket NumberNo. 4780.,4780.
PartiesELLISONv.ELLISON.
CourtSupreme Court of New Mexico

OPINION TEXT STARTS HERE

Appeal from District Court, Quay County; J. C. Compton, Judge.

Action by Herman L. Ellison against Emma L. Ellison for divorce, wherein defendant filed a cross-complaint. From a judgment on cross-complaint for defendant, plaintiff appeals.

Affirmed.

State land commissioner has exclusive control and absolute dominion over state lands, subject to appeal to the district court and ultimately to Supreme Court.

J. V. Gallegos; of Tucumcari, for appellant.

Royal A. Prentice, of Tucumcari, for appellee.

MABRY, Justice.

Appellee, Emma L. Ellison, defendant below, was granted a divorce from Herman L. Ellison, appellant-plaintiff, upon her cross complaint and was awarded certain property then in her possession as her separate estate. Appellant appeals, alleging error of the trial court in determining what was the separate estate of appellee, particularly as it has reference to a certain lease of state lands, which lease appellant contends is the community property of the two. Appellant concedes that the material facts are not controverted and the result here will be determined upon a question of law; and he says that the case must be resolved largely from an interpretation of the statutes of our state with reference to the rights of the parties in the state lease in question (1941 Comp., sec. 8-801 to 8-868, and sec. 10 of the Enabling Act as interpreted in State ex rel. McElroy v. Vesely, 40 N.M. 19, 52 P.2d 1090).

The trial court found that the parties were married on September 8, 1934 and lived together until September 21, 1942; that at the time of the marriage appellee was the sole owner, as of her separate estate, of a certain state lease covering a section of state land in Quay County, New Mexico; that this property has at all times remained the separate estate of appellee; and that all personal property mentioned now in the possession or under control of either of the parties is the separate property and estate of appellee, excepting all the livestock, all the grain now on hand or in storage, the cash now in the bank, the cattle scales, one wagon, harness, saddle and bridle, all the chattels covered by the exception aforementioned being community property. It was directed that this community property be equally divided, or that it be sold and the proceeds equally divided.

[1] There is ample evidence to support the foregoing findings, excepting as they relate to the ownership of the state land lease, which question, for the reasons hereinafter given, we do not decide. The evidence on behalf of appellee shows that at the time of the marriage she was the lessee of the section of land in question upon which were four houses, built or owned by her, as well as certain barns and out buildings and fences; that she also owned certain household furniture, a tractor, a truck, and various other items of farm machinery and equipment; that she had about $1500 in cash in the local bank and thereafter received an inheritance of some $535; and that she owned an automobile.

It appears that all of this property appellee considered to be her separate estate and that it was never commingled with the property of the community during the married life of the parties; although there were, in many instances, exchanges or conversion made from one type of property to another. However, both parties kept individual bank accounts not subject to the other's checks, and the record discloses that each item of the property was substantially traced as to source and use from the date of the marriage to the date of trial.

Appellant himself owned but little property at the time of the marriage. He did own an automobile which was thereafter traded for land which he later sold for $600. Out of this money he used $200 for drilling on the section of land in question and the balance was used by him. There is, therefore, ample evidence to sustain the court's finding as to what property now in the possession of the parties is the separate property and estate of appellee.

[2] From the briefs it appears that the principal issue involved is as to whom the leasehold right belongs. This property right is, of course, a chattel (American Mortgage Co. v. White et al., 34 N.M. 602, 287 P. 702), and not real property. Appellant says that 1941 Comp., sec. 65-401 providing that “all other property acquired after marriage by either husband or wife, or both, is community property”, would control as to the ownership of the lease renewed, or secured, in 1938.

Appellee owned the lease at the time of her...

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3 cases
  • 1996 -NMSC- 78, Sims v. Sims
    • United States
    • New Mexico Supreme Court
    • 6 d5 Dezembro d5 1996
    ...367, 372 (1954) ("So far as the state lease in question is concerned, it is a chattel and not real property."); Ellison v. Ellison, 48 N.M. 80, 82, 146 P.2d 173, 174 (1944) (stating a leasehold is a chattel); State ex rel. Truitt v. District Court, 44 N.M. 16, 31, 96 P.2d 710, 719 (1939) (c......
  • Burguete v. Del Curto
    • United States
    • New Mexico Supreme Court
    • 14 d6 Julho d6 1945
    ...rights as between the parties touching upon the question of a renewal or a new lease of the state land in question.’ Ellison v. Ellison, 48 N.M. 80, 146 P.2d 173, 174. Even if it may be said that the question here presented, because of the peculiar facts, or equitable nature of the suit, is......
  • Burguete v. Del Curto
    • United States
    • New Mexico Supreme Court
    • 14 d6 Julho d6 1945
    ... ... the question of a renewal or a new lease of the state land in ... question.' Ellison v. Ellison, 48 N.M. 80, 146 ... P.2d 173, 174 ...          Even if ... it may be said that the question here presented, because of ... ...

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