First Nat. Bank of Albuquerque v. Town of Tome.

• Decision Date: 15 September 1917
• Docket Number: No. 1969.,1969.
• Citation: 167 P. 733,23 N.M. 255
• Parties: FIRST NAT. BANK OF ALBUQUERQUEv.TOWN OF TOME.
• Court: New Mexico Supreme Court

23 N.M. 255

167 P. 733

FIRST NAT. BANK OF ALBUQUERQUE

v.TOWN OF TOME.

No. 1969.

Supreme Court of New Mexico.

Sept. 15, 1917.

Syllabus by the Court.

A right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies.

One who avails himself by action, or by defense to an action, of part of an indivisible claim or cause of action, thereby estops himself from again maintaining an action or defense founded upon it.

Possession will be presumed to accompany ownership until the contrary is proved; a constructive possession consequent upon legal ownership is sufficient as against mere trespassers, that is, as against those who do not show some right of possession.

Where plaintiff's right of action is based upon adverse possession of land within land grants, and where such possession has been shown for ten years, under section 3364, Code 1915, the possessor holding by virtue of a deed of conveyance, or other grant purporting to convey an estate in fee simple, and no claim by suit in law or equity, effectually prosecuted, shall have been set up or made to said lands within said period, then the person or persons so holding adverse possession shall be entitled to keep and hold the land in preference to all and against all.

Where title is claimed by adverse possession under color of title, the possession must be actual, and not constructive, in its nature. It must be a possession subjecting the land to the will and dominion of the occupant, and must be evidenced by those things essential to its beneficial use, and must be clearly defined, open, actual, visible, exclusive, hostile, and continuous.

Held, there is no evidence in this case showing the extent of the claimed possession of appellant, or negativing the fact that the legal owner of the premises might have been exercising dominion over the property.

Findings must be of the ultimate facts which the evidence is intended to establish sufficient in themselves without inference or comparison or the weighing of evidence to justify the application of the legal principles which must determine the case.

If the findings of the trial court support all the essential allegations of the complaint, it must necessarily follow that the findings of fact support the judgment, where the issues are found in favor of plaintiff, and examination of the findings of fact will disclose that they support all the necessary allegations of the complaint, and therefore support the plaintiff's cause of action, which is all that is required.

By the confirmation by Congress of lands granted by the King of Spain nothing more than a relinquishment or quitclaim was intended, or accomplished and adverse rights, being excepted, were not affected, if valid.

Appeal from District Court, Valencia County; Neblett, Judge.

Action by the First National Bank of Albuquerque against the Town of Tome. Judgment for plaintiff, and defendant appeals. Affirmed.

If the findings of the trial court support all the essential allegations of the complaint, it must necessarily follow that the findings of fact support the judgment, where the issues are found in favor of plaintiff, and examination of the findings of fact will disclose that they support all the necessary allegations of the complaint, and therefore support the plaintiff's cause of action, which is all that is required.

For the sake of brevity, and in order to avoid confusion, the First National Bank, appellee, will be called the plaintiff, and the town of Tome, appellant, will be referred to as defendant, which was the relation of the parties in the court below.

The complaint alleged that the plaintiff was the owner in fee simple and possessed of the real estate described therein; that the defendant, as well as unknown claimants who were made parties defendant, makes some claim to said real estate adverse to that of the plaintiff. The complaint then proceeds in the usual form, and prays that plaintiff's title be quieted and set at rest.

The defendant answered, denying that the plaintiff was the owner in fee simple and possessed of the real estate described, alleging that said real estate is within the exterior boundaries of the Tome land grant, granted by the King of Spain to the predecessors in title of the defendant in the year 1739, said grant having been confirmed by act of Congress approved on the 22d day of December, 1858, and on the 5th day of April, 1871, patented to the predecessors in title of the defendant; that for more than ten years next after the issuance of patent, and continuously to date of institution of suit, no claim by suit in law or equity effectually prosecuted has ever been set up or made by the plaintiff, or by those under whom it claims, to said real estate, and that by force of the statute in such case made and provided the defendant is entitled to keep and hold said lands; that the plaintiff and those under whom it claims neglected for more than ten years to avail themselves of any title they may have had by suit at law or in equity effectually prosecuted against the defendant or its predecessors in title, whereby, by force of the statute, the plaintiff's cause of action became and is forever barred; that for more than ten years next before the institution of suit the defendants and its predecessors in title have been in open, notorious, and adverse possession of said real estate continuously and in good faith and under color of title, and have paid the taxes lawfully assessed against the same, whereby and by force of the statute the plaintiff is disabled to maintain its action; that the plaintiff's alleged cause of action did not accrue within ten years next before the institution of suit--and pleads the ten-year statute of limitation in bar of suit.

In its reply the plaintiff joined issue upon the allegations of the answer, and affirmatively pleaded: (1) That the plaintiff and its predecessors in title had for more than fifty years had possession of the land described in the complaint, holding and claiming the same by virtue of deeds of conveyance purporting to convey an estate in fee simple, and that no suit at law or in equity had been effectually set up or prosecuted within that time to said lands, and that by virtue of the statute the plaintiff was entitled to keep and hold the same; (2) that the defendant had neglected and failed for more than ten years to avail itself of any title by suit at law or in equity effectually prosecuted against the defendant or its predecessors in title--and pleads the statute of limitation of ten years against any defense the defendant may have.

It will thus be seen that the following is sues were presented in the lower court:

First, by the plaintiff:

(a) Title in fee simple under an alleged grant made by Prefect Francisco Sarracino March 1, 1842, and individual allotments made thereunder by Jose Pino, justice of the peace.

(b) Possession for more than fifty years, holding and claiming the same by virtue of deeds of conveyance purporting to convey an estate in fee simple, no claim by suit at law or equity, effectually prosecuted, having been set up or made by the defendant within that time.

(c) That the defendant failed for more than ten years to avail itself of any title, legal or equitable, by suit in law or equity effectually prosecuted against the plaintiff, who at all times was in possession of said real estate.

Second, by the defendant:

(a) Title in fee simple under grant from the King of Spain, act of confirmation of Congress, and patent of the United States.

(b) That for more than ten years after the issuance of patent and continuously until the institution of suit, defendant was in possession of said land, and that no suit or claim at law or equity effectually prosecuted, had ever been set up or made by the plaintiff.

(c) That if the plaintiff ever had any claim to said lands, it neglected for more than ten years to avail itself of such claim or title by suit at law or equity effectually prosecuted against the defendant, who was at all times in possession of said land.

(d) That for more than ten years before the institution of the suit, the defendant has been in adverse possession of said land, in good faith under color of title, and paid all taxes lawfully assessed against the same.

(e) That the plaintiff's cause of action did not accrue within ten years next before the institution of suit, and pleading relies upon the statute of limitation in bar.

In support of its claim of title in fee to the lands described in the complaint, plaintiff introduced in evidence, as Exhibit Y, a Spanish document, a translation of which is as follows:

“At the place of Parajito, in the jurisdiction of San Felipe Neri, of Albuquerque, on the first day of March, one thousand eight hundred and forty-two, presented themselves Pedro Perea, Juan Antonio Baca, and Antonio Samora, neighbors of the jurisdiction of Tome, saying that they represented twelve other residents as well as themselves as heirs and grantees of the grant of the new settlement of Our Lady of the Conception of Tome Dominguez, and stated that in their said grant there is a place called Los Ojuelos which is in the plain distant four leagues from the parish church and two leagues from the Manzano Mountains, and they request that the adjacent lands which can be irrigated by the waters of said springs be partitioned out to them for settling upon the said place, and that it may serve them for the maintenance of their large families and for the protection of travelers, of the shepherds, and of the wood carriers who go to the mountains, from the savage Indians who constantly depredate. And accepting it, their petition, as presented and granting the prayer which the said parties make therein, I grant their petition, and I decree and order that they appear before C. Jose Pino,...