First State Bank of Alamogordo (border Nat. Bank of El Paso v. Mcnew

• Decision Date: 25 June 1928
• Docket Number: No. 2949.,2949.
• Citation: 33 N.M. 414,269 P. 56
• Parties: FIRST STATE BANK OF ALAMOGORDO (BORDER NAT. BANK OF EL PASO, TEX., Intervener)v.McNEW et al.
• Court: New Mexico Supreme Court

33 N.M. 414

269 P. 56

FIRST STATE BANK OF ALAMOGORDO (BORDER NAT. BANK OF EL PASO, TEX., Intervener)

v.McNEW et al.

No. 2949.

Supreme Court of New Mexico.

June 25, 1928.

Syllabus by the Court.

If the evidence when both parties rested justified findings for plaintiff, no reversible error can be asserted upon the court's refusal to dismiss when plaintiff rested. In the instant case, held, no error in overruling a similar motion interposed at the close of the case.

Findings of fact, upon which conclusions of law were made, that conveyance made by defendants was fraudulent and void as against plaintiff, creditor of said defendants, examined, and held supported by substantial evidence.

In trials before the court without a jury, the erroneous admission of testimony will afford no ground for reversal, unless it appears that the court considered such testimony in deciding the case, particularly where there is other testimony in the case, free from objection, which supports the findings which the court has made.

Use of water for domestic purposes, including stock watering, is a “beneficial use” of water.

Where one holding possessory right to public land for grazing purposes by virtue of an implied license from the federal government and the laws of New Mexico, and the ownership of sufficient living permanent water upon such range for the proper maintenance of cattle, signifies his intention to make a permanent water right incident to such public land, he may sell and verbally transfer said water rights with such possessory right in the land.

In the absence of valid intention of owner of water rights, used in connection with and incident to his possessory rights in public land, to transfer such rights to a homestead entryman of said land, said entryman does not obtain the water right with the land.

One who makes a filing on unoccupied public land takes the same subject to any vested and accrued water right for domestic, mining, agricultural, manufacturing, or other purposes, which are recognized by the local laws, customs, and decisions of courts.

The statement, in Patterson v. Chaney, 24 N. M. 156, 173 P. 859, 6 A. L. R. 90, to the effect that the purchaser from the government of public land is entitled to the improvements on the premises when he acquires possession, as being a part of the real estate, held to have no application to water rights incident or appurtenant to public land.

Appeal from District Court, Otero County; Owen, Judge.

Action by the First State Bank of Alamogordo against Robert J. McNew and others, wherein the Border National Bank of El Paso, Tex., intervened. Judgment for plaintiff and intervener, and defendants appeal. Reversed and remanded, with directions.

See, also, 252 P. 997.

Use of water for domestic purposes constitutes “beneficial use,” for which water may be appropriated.

Tom Lea, of El Paso, Tex., and Holt & Sutherland and J. Benson Newell, all of Las Cruces, for appellants.

J. L. Lawson, of Alamogordo, for appellees.

BICKLEY, J.

This is an action by plaintiff (appellee) and intervener (appellee) to set aside a conveyance made by appellants W. H. McNew and Nettie McNew, his wife, to their son, Robert J. McNew, and for other incidental relief. The answer contained general and specific denials, and also three separate affirmative defenses, which, if sustained, would defeat the claim of plaintiff and intervener to have the property involved subjected to the payment of the community debts of W. H. McNew and his wife. These affirmative defenses will be more fully set forth in the course of the opinion. The following facts were found by the trial court:

“(1) That the defendants are all residents of the county of Otero, state of New Mexico; that Robert J. McNew is a son of defendants W. H. McNew and Nettie McNew, and the said latter parties are husband and wife, and have been for many years.

(2) That plaintiff, on the 24th day of January, 1923, on a community debt of the defendant W. H. McNew and Nettie McNew, recovered judgment in the district court for the county of Otero against the said W. H. McNew in the sum of $12,000 and costs; that on the same date a transcript of said judgment was made, filed, and recorded in the office of the county clerk of the said county of Otero; that also on the same day an execution was issued out of the said district court against the said W. H. McNew on the said judgment, which was returned March 21, 1923, to the clerk of this court by the sheriff of the said county of Otero ‘nulla bona,’ and the said judgment, with interest and cost, is wholly unsatisfied:

(3) That after the said debt on which the said judgment was recovered became due, demand being made on defendant W. H. McNew for payment, and being unable to pay the same, he and his said wife, on the 26th day of January, 1922, executed and delivered to their said son, Robert J. McNew, a deed for the property in the county of Otero, state of New Mexico, as follows, to wit: Fifteen thousand gallons of water per day from the Sacramento river pipe line, the same to be taken from the pipe at ranch on section 31, in township 21 south of range 9 east, N. M. P. M. That about the same time the defendant W. H. McNew verbally transferred to the said Robert J. McNew the house, tank, and other improvements on the said section 31, with pipe lines used to distribute the said waters over a large area of public range, and also a large amount of improvements on lands of the United States and of the state of New Mexico, consisting of houses, fences, tanks, tubs, and also leases of state lands, from the state of New Mexico, all of the said property being worth about $25,000. That the said property so conveyed and transferred was all of the property that the defendant W. H. McNew owned at the said date, except that mortgaged to the intervener herein. That at the date of the execution of the said deed the defendant W. H. McNew, in addition to his indebtedness to intervener herein, was also indebted to Jacob Snover in the sum of $3,000, with interest, and also other persons, which he was unable to pay, and also was at the said time unable to meet his ranch expenses, all of which was known to the defendant Robert J. McNew at the time of delivery of the said deed and transfer of the said other property.

(4) That only a nominal consideration was paid by the said Robert J. McNew to the said W. H. McNew for all of the said property, and unless the said property is sold, and the proceeds applied to payment of plaintiffs' said judgment, it must remain unsatisfied; the said defendant W. H. McNew having no property of any kind subject to execution. That the defendant W. H. McNew is now and has been for many years in possession and exercising control over all of the said above described property. That plaintiffs' judgment is a community debt of said W. H. McNew and wife. That the said above-described property, transferred to defendant Robert J. McNew, was at the date of the transfer the community property of said W. H. McNew and wife.”

From the foregoing findings, the court concluded, among other things:

“That the said deed from defendants W. H. McNew and Nettie McNew to the defendant Robert J. McNew, and the transfer by the defendant W. H. McNew to Robert J. McNew of the said other property described above herein, is fraudulent and void as against plaintiff, and should be set aside by this court and held for naught.”

[2] We think the foregoing findings are supported by substantial evidence, and that the said conclusion was a proper one to be drawn from such findings, subject to the modifications hereinafter set forth. The court went further, and decreed that the houses, tanks, and other improvements belonging to W. H. McNew and Nettie McNew, with the pipe line used to distribute water over the public range, and all other improvements on lands of the United States and on lands of the state of New Mexico, consisting of houses, tanks, and fences on leased lands, be subjected to the judgments and judgment liens of the plaintiff and intervener and other creditors of the said W. H. McNew and Nettie McNew, and that the said property be sold and the proceeds of the sale brought into court, to await disposition thereof to the said creditors, as might be determined by the further orders of the court.

[3] Appellants assign 78 errors. About 20 of such assignments relate to the admission or exclusion of evidence. Some of these are not argued. In some instances appellants now admit that the alleged errors were harmless. We have examined them all, and find no prejudicial error therein. We are fortified in this view by the frequent holdings of this court to the effect that in trials before the court the erroneous admission of testimony will afford no ground for reversal, unless it appears that the court considered such testimony in deciding the case, particularly where there is other testimony in the case, free from objection, which supports the findings which the court has made. See Lynch v. Grayson, 5 N. M. 487, 25 P. 992; Grissom v. Grissom, 25 N. M. 518, 185 P. 64; Crawford v. Gurley, 23 N. M. 659, 170 P. 736; Halford Ditch Co. v. Independent Ditch Co., 22 N. M. 169, 159 P. 860, L. R. A. 1917D, 1137; Radcliffe v. Chaves, 15 N. M. 258, 110 P. 699, where the court said:

“In cases tried before the court, it will be presumed that the court ultimately disregarded inadmissible testimony, and the erroneous admission of testimony will afford no ground of error, unless it is apparent that the court considered such testimony in deciding the case.”

[1] It is complained that the court erred in overruling appellants' motion, interposed at the close of the case in chief of the plaintiff and intervener, to dismiss the complaint and petition of intervention upon the grounds set forth in said motion, which, in the main, challenged the sufficiency of the evidence to prove the allegations of the complaint and petition in...