Field v. Turner, 5448

• Decision Date: 07 January 1952
• Docket Number: No. 5448,5448
• Parties: FIELD et al. v. TURNER et al.
• Court: New Mexico Supreme Court

Page 723

239 P.2d 723

56 N.M. 31

FIELD et al. v. TURNER et al.

No. 5448.

Supreme Court of New Mexico.

Jan. 7, 1952.

Reese, McCormick & Lusk, and Eugene C. Paine, all of Carlsbad, for appellants.

Hervey, Dow & Hinkle, and Charles R. Brice, all of Roswell, for plaintiffs-appellees.

James T. Jennings, Roswell, R. H. Wills, J. P. Greve, Tulsa, Okl., for third party defendants-appellee.

McGHEE, Justice.

The appellants, except Turner, seek the recovery of an undivided one half interest in a half section of land in Lea County which their late father, Elvis W. Bullock, and his wife, while the former was insane, conveyed to H. Field for its full value on June 3, 1936, without the exercise of coercion or undue influence on the part of Field. The father continued to be insane until his death on April 27, 1942. At the time of the above transaction Field also purchased the other half interest from its owner. Field promptly filed his deeds for record and went into actual possession of the land and he in his lifetime, and his heirs since then have continued in the peaceful, actual and adverse possession thereof, timely paying all taxes assessed against it.

The Mid-Continent Petroleum Corporation has an oil and gas lease on the tract from the Field heirs, and Turner has an oil and gas lease executed by the sons and daughters of Elvis W. Bullock on fourtenths of the minerals.

On May 2, 1950, the Field heirs filed suit to quiet their title to the land as against the Bullock heirs and Turner. On June 15, 1950, such defendants, joined by Don G. McCormick as guardian ad litem for Deward Bullock, son of Elvis W. Bullock, who has been insane since, at least, prior to the death of his father, disaffirmed the deed from their father and mother to Field, tendered back the consideration, less rents and profits, and asked that they be allowed to recover the interest in the land which would have gone to them on the death of their father.

The sole questions in this appeal relate to our limitation statutes.

The parties agree that the deed of an insane person is voidable and not void, but they disagree as to the applicable statute and when it started running, the appellants contending the ten-year statute, Sec. 27-121, 1941 Compilation (before the 1947 amendment) governs and that it, except as to the insane appellant, started running on the death of the grantor. The guardian ad litem says as his ward was insane at the time of the death of his father, limitations never started running against him. The appellees contend the four-year statute, Sec. 27-104, 1941 Compilation, controls, but if it be determined the ten-year statute applies the claim was barred at the time of the filing of the cross-complaint for the reason limitation began to run at the time of the filing of the deed to Field for record and his entry into possession of the property, and that the insanity of Deward Bullock cannot be tacked to that of his father so as to suspend the operation of the ten-year statute.

These statutes read as follows:

'No person or persons, nor their children or heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments, against any one having adverse possession of the same continuously in good faith, under color of title, but within ten (10) years next after his, her or their right to commence, have or maintain such suit shall have come, fallen or accrued, and all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments so held, shall be commenced within ten (10) years next after the cause of action therefor has accured: Provided, that if any person entitled to commence or prosecute such suit or action is or shall be, at the time the cause of action therefor first accrued, imprisoned, of unsound mind, or under the age of twenty-one (21) years, then the time for commencing such action shall in favor of such persons be extended so that they shall have one (1) year after the termination of such disability to commence such action; but no cumulative disability shall prevent the bar of the above limitation, and this proviso shall only apply to those disabilities which existed when the cause of action first accrued and to no other. * * *' Sec. 27-121, N.M.S.A., 1941 Comp.

'The following suits or actions may be brought within the time hereinafter limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially provided.' Sec. 27-101, N.M.S.A., 1941 Comp.

'Those founded upon accounts and unwritten contracts; those brought for injuries to property or for the conversion of personal property or for relief upon the ground of fraud, and all other actions not herein otherwise provided for any specified within four (4) years.' Sec. 27-104, N.M.S.A., 1941 Comp.

We will first determine whether the appellants are barred under the ten-year statute.

It is their contention that an act of disaffirmance of the 1936 deed was a condition precedent to the accrual of a cause of action to recover the land, and that such disaffirmance could not be made by an insane person; that, therefore, limitations did not start running until the death of Elvis W. Bullock in 1942, and that their cross-complaint was timely filed in 1950.

The appellants cite the case of Downham v. Holloway, 158 Ind. 626, 64 N.E. 82, in support of their claim that an insane person has no power to affirm or disaffirm a deed, and, consequently, that limitations did not start running until the death of the grantor in 1942. It and the other Indiana cases therein cited fully support the claim, and, if followed, the appellants must prevail.

They also rely on the case of Parker v. Betts, 47 Colo. 428, 107 P. 816, where it was held the cause of action did not accrue and limitations did not commence to run until the death of the grantor. Due to a difference in the statutes of Colorado and New Mexico this case cannot be considered as authority here.

The cases of Howard v. Carter, 71 Kan. 85, 80 P. 61, and Jenkins v. Jenkins, 94 Kan. 263, 146 P. 414, likewise support the contentions of the appellants, but they are contrary to and are apparently overruled by the later Kansas cases of Bradley v. Hall, 165 Kan. 358, 194 P.2d 943, and Wilson v. Beeler, 151 Kan. 699, 100 P.2d 645. The rights of minors were involved in these late Kansas cases but the same law governs them and insane persons. See also Fletcher v. Holcomb, 142 Kan. 177, 45 P.2d 1053.

The appellants also cite Reaves v. Davidson, 129 Ark. 88, 195 S.W. 19, in support of their contention the statute of limitations did not start running until the death of the insane grantor. The Arkansas statute, Sec. 37-226, is identical with ours, except it allows three years after the recovery of sanity or a minor becomes of age for the institution of suit where ours allows only one. This case was contrary to earlier Arkansas cases and it is also contrary to the later case of Nixon v. Norton-Wheeler Stave Co., 207 Ark. 838, 183 S.W.2d 300, 301, where the Arkansas statute is quoted in full. In both the New Mexico and the Arkansas statutes infants and insane persons are joined in the respective provisos or saving clauses. In construing the statute in the last cited case, that court said:

'* * * The construction placed on these statutes by appellants to the effect that they are thereby permitted seven full years after the youngest child attains his or her majority in which to begin their action is contrary to the construction which has been placed on these statutes by many former decisions of this court. Yell v. Lane, 41 Ark. 53; McGaughey et al. v. Brown et al., 46 Ark. 25; Brake v. Sides, 95 Ark. 74, 128 S.W. 572; Reed v. Money, 115 Ark. 1, 170 S.W. 478; Murphy v. Graves, 170 Ark. 180, 279 S.W. 359. These decisions are to the effect that the bar of the statute begins and continues to run against adults and infants alike, except that, in the case of infants whose rights accrue during their minority, such infants have the seven years (part or all of which may run during their minority) and in addition thereto, such length of time as may have transpired between the date of the accrual of the cause of action and the majority of such infant, but in no case shall the period of extension granted because of the accrual of such cause during minority exceed three years.

'Thus it is readily apparent that unless this action had been commenced on or before the date appellant W. B. Nixon, Jr., reached the age of twenty-four years such action is barred under the statute quoted.'

See also Murphy v. Graves, 170 Ark. 180, 279 S.W. 359.

The Indiana cases seem to be the only current authorities which support the appellants.

Our limitation statutes were originally taken from Iowa, and while we do not find any Iowa cases decided prior to 1852, the time we adopted the ten-year statute of limitation for the recovery of real property, we do find later ones construing their statute giving additional time for minors and insane persons to file actions after the removal of their disabilities.

Section 1666 Iowa Code of 1851, I.C.A. Sec. 614.8, which, except for a change which is not material, has continued in force to date, reads: 'The times limited for actions herein, except those brought for penalties and...