First Sa v. Bank & Trust Co.

• Decision Date: 08 April 1924
• Docket Number: No. 2819.,2819.
• Citation: 29 N.M. 595,225 P. 582
• Court: New Mexico Supreme Court
• Parties: FIRST SAV. BANK & TRUST CO., ALBUQUERQUE,v.ELGIN ET AL.

29 N.M. 595

225 P. 582

FIRST SA

v. BANK & TRUST CO., ALBUQUERQUE,

v.ELGIN ET AL.

No. 2819.

Supreme Court of New Mexico.

April 8, 1924.

Syllabus by the Court.

Testimony of a surveyor concerning disputed location and boundaries of land, based on extrajudicial declarations and statements of persons assuming to have knowledge thereof, but not called as witnesses to the correctness of the information so given, is hearsay and inadmissible.

The statutes of New Mexico make no provision for a cross-appeal, as such, and, where both plaintiff and defendant appeal, each must file the bond required by statute in order to give the Supreme Court jurisdiction to consider his appeal.

The sufficiency of the description of premises in a deed is not to be measured by any inflexible rule or set of rules, but it is the province and duty of the court to place itself as nearly as possible in the situation of the parties to the instrument and endeavor to discover and give effect to their intention. The test in every case, as in the case of contracts other than deeds, is whether or not the intention of the parties can be discovered and effectuated.

A plaintiff, in a suit to quiet title against a defendant who makes claim to the whole of a tract of land of which plaintiff claims a small part within the interior under conveyances which without the aid of extrinsic evidence are insufficient as to description, who does not identify the land claimed, is not entitled to relief.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Suit by the First Savings Bank & Trust Company, Albuquerque, against Willie Elgin and others. Decree for defendants, and plaintiff appeals. Affirmed.

In suit against one claiming whole of tract of land of which plaintiff claims small part within interior, under conveyances, which without aid of extrinsic evidence are insufficient as to description, plaintiff, not identifying land claimed, is not entitled to relief.

A. B. McMillen and L. F. Lee, both of Albuquerque, for appellant.

Marron & Wood, of Albuquerque, for appellees.

BOTTS, J.

The meritorious question in this case is whether or not a plaintiff is entitled to relief in a suit to quiet title against a defendant who makes claim to the whole of a tract of land, of which plaintiff claims a small part within the interior under conveyances which of themselves are insufficient as to description to identify the land claimed; no identification by extrinsic evidence being made.

Plaintiff, the First Savings Bank & Trust Company, filed suit against several defendants to quiet its title to certain small tracts of land designated in the record by the letters A, B, C, D, E, F, G, and H, all lying within the exterior boundaries of the Chilili grant in Bernalillo and Torrance counties. Defendant the Estancia Investment Company defended on the ground, among others, that it was the owner of a specifically described tract of 1,500 acres out of the east end of said grant and within which the tracts D, E, and F, as described in the original complaint, are located. These tracts are described in the complaint by a survey tied to an established corner setting out the metes and bounds by courses and distances. They are unfenced, and no one is in the actual possession thereof. No question is raised as to the sufficiency of this description to identify the land, but at the trial plaintiff failed to identify the land attempted to be conveyed by the various deeds under which plaintiff claimed, with the land as described by the survey. Plaintiff after the hearing asked and was granted leave to file an amended complaint wherein an additional description was set out, copied verbatim from the deeds, not alleging that the land so described is the same as that described by the survey; but, from all that appears from the amended complaint, the new description might well be of land entirely different from that first described. The description of tract E may be taken as a fair representation of the character of the description contained in the several deeds. None of them contained a description more definite, and that in some of them is even less definite. The tract is described as follows:

“That tract of land in the Chilili grant, situated at the place known as the town of Chilili, measuring from north to south 1,000 yards, and from east to west 600 yards. Bounded on the north by the lands of Gil. Gutierrez; on the south and west by lands of the Chilili grant; on the east by lands of Ramon Moya and formerly being the land of Adelaido Garcia and Adelubina Mora de Garcia.”

Tract F is supposed to be made up of a large number of smaller tracts. All claims, both those of plaintiff and that of defendant, are based on alleged direct or mesne conveyances from the board of commissioners of the Chilili grant.

[1] The only evidence offered in an effort to identify the land described in the deeds with the land described in the original complaint, or at all, was the testimony of a surveyor who had no personal knowledge of the boundaries, either of the land in suit or of that by which it purports by the deeds in certain instances to be bounded, and upon it becoming plainly apparent that the witness' identification of the land was based upon pure hearsay, and no other evidence being offered by which the surveyor's lines could be validated, the court, on motion of the defendant, struck out the testimony. This ruling of the court is complained of as error and may as well be disposed of at this point. The record discloses that the surveyor, when he went on the ground prior to the suit for the purpose of making a survey by which the land could be definitely described and located, made inquiries of various persons as to purported boundaries and locations and undertook to determine for himself, from the result of such inquiries, what the boundaries and locations should be. The persons interrogated by this surveyor were not examined in court relative to their knowledge upon which their statements to him were based, and, in fact, when the defendant undertook to cross-examine one of these witnesses concerning this matter, successful objection was made by the plaintiff that it was not proper cross-examination; the examination in chief having been confined to an entirely different point.

To make evidence of this character admissible would be to give a surveyor judicial powers and to recognize his right to determine a controverted fact upon the unsworn statements of witnesses whom an adverse party has no opportunity to cross-examine. Plaintiff cites us no authority, and we know of none, which excepts evidence of this character from the operation of the hearsay rule. The court was correct, therefore, in striking out the evidence.

The court entered a decree quieting plaintiff's title to all of the tracts, except E and F. Both parties appeal, the plaintiff questioning the correctness of the court's decree as to tracts E and F, and the defendant questioning the decree as to tract D.

[2] With respect to the defendant's appeal, plaintiff raises the objection that the only appeal bond filed in the case was that filed by plaintiff, and that defendant's appeal must fail for want of a bond, on authority of Hernandez v. Roberts, 24 N. M. 253, 173 Pac. 1034, construing section 15, c. 43, of the Laws of 1917. With this contention of plaintiff we agree. Our statute makes no provision for a cross-appeal, as such, so that where both parties to a judgment appeal therefrom, each, in order to give this court jurisdiction to consider his appeal, must file the bond required by statute. Defendant's failure to file an appeal bond precludes any consideration of the judgment in so far as it affects tract D, and leaves only tracts E and F before us.

It is readily apparent that the land cannot be located or identified solely from the descriptions contained in the deeds, but the plaintiff complains that the trial court held the conveyances void for insufficiency of description, and assigns error in this respect on the ground that the land might be located by extrinsic evidence. We do not so understand the ruling of the court. The deeds were admitted in evidence over the objection of the defendant, and plaintiff was given an opportunity to aid the description by extrinsic evidence; but with this opportunity presented to it, and after an effort to so aid the description, the land still remained unlocated and unidentified. The court specifically found by finding of fact No. IV that the evidence failed to identify any of the lands, except tract D, claimed by the plaintiff within the portion of the grant claimed by the defendant so as to enable the court to ascertain the location of such lands, and that the claim of the plaintiff to such lands, except tract D, is not well founded.

In support of defendant's argument that the court correctly refused to quiet plaintiff's title because of the failure to locate and identify the lands, counsel cite the following authorities: McArthur v. Porter, 6 Pet. 205, 8 L. Ed. 371; 15 Cyc. 144; Webster v. Harris, 111 Tenn. 668, 69 S. W. 782, 59 L. R. A. 324; Jarvis v. Lynch, 157 N. Y. 445, 52 N. E. 657; Northern Ry. Co. v. Jordan, 87 Cal. 23, 25 Pac. 273; Gittings' Lessee v. Hall, 1 Har. & J. (Md.) 14, 2 Am. Dec. 502; Cottingham v. Hill, 119 Ala. 353, 24 South. 552, 72 Am. St. Rep. 923; Munger v. Grinnell, 9 Mich. 544; and Harrisburg v. Crangle, 3 Watts & S. (Pa.) 460. An examination of these authorities discloses that they are discussing the rule in ejectment cases, but we also find that a similar rule has been applied by courts in suits to quiet title. In Kadderly v. Frazier, 38 Or. 273, 63 Pac. 487, the trial...