Gentile v. Kennedy

• Decision Date: 05 August 1896
• Citation: 45 P. 879,8 N.M. 347
• Parties: GENTILEv.KENNEDY et al.
• Court: New Mexico Supreme Court

8 N.M. 347

45 P. 879

GENTILE

v.KENNEDY et al.

Supreme Court of the Territory of New Mexico.

Aug. 5, 1896.

Appeal from district court, Santa Fé county; before Justice N. B. Laughlin.

Suit by A. M. Gentile against Charles W. Kennedy and others.Decree for complainant.Defendants appeal.Affirmed.

In a suit to quiet title to land, where the constructive possession under the deed and the actual possession of part of the land showed the pedis possessio to be in complainant, and, moreover, neither party was in the actual or constructive possession, and there was no tenant to the praecipe against whom ejectment could be brought, equity alone could give relief.

Childers & Dobson and B. S. Rodey, for appellants.

Catron & Spiess, for appellee.

BANTZ, J.

This is a suit in chancery by bill to quiet title to certain lands.The appellants and appellee deraign title from substantially the same persons.The deed under which Gentile claims was made March 29, 1880, and conveyed to his grantor certain lands, as far as “the hills”(los lomas), or “The Hills”(Las Lomas).Crossan, one of the defendants(appellants), though he had inspected Gentile's deed, and had actual knowledge of his claim of ownership, formed the opinion that Gentile's title did not extend to the land in question; and on December 10, 1888, he sought the persons who had made the deed of March 29, 1880, and, under representations to them that it did not interfere with the title they had previously conveyed, procured from them another deed, conveying to Mrs. Crossan the land in question and the adjoining land further east.Kennedy afterwards bought an interest from Mrs. Crossan.Although it is a matter of no particular consequence in this case, it appears that the Crossans were purchasers with full notice, who have relied upon the accuracy of their opinion for the profit of the speculation.The case was referred to a special master, to take the proofs, and report his findings of fact and conclusions of law.The master found the law and the facts in favor of Gentile.The district court approved the report, and the cause is here on appeal.

It has been held by this court in a series of cases that the findings of a master upon conflicting testimony will not be disturbed where the record shows there is any evidence upon which such findings can be based.De Cordova v. Korte (Sup. Ct. N. M.; July term, 1895)41 Pac. 526;Field v. Romero(N. M.)41 Pac. 517;Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237.The deed under which Gentile holds bounds the lands on the east by “the hills.”As to the location of “the hills,” and as to the meaning of that description by reference to local objects, both sides introduced a mass of testimony.The master found the hills mentioned in the deed to lie east of and beyond the land in question.That finding is abundantly supported by the evidence, and we would have reached the same conclusion.

But it is objected that a court of equity is without jurisdiction in this case; that the proper remedy was at law, by action in ejectment, where both parties may enjoy the constitutional right of trial by jury.It will not be necessary to pass upon or consider the validity of section 2214, Comp. Laws, which permits a bill to be brought to quiet title, whether the complainant be in or out of possession.A decision of that question is not necessary here.It is undoubtedly true that courts of equity generally have no jurisdiction to quiet title unless complainant is in possession.Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 120.In this case the master found that each party was in actual possession of portions of the land mentioned in his and her deeds, respectively,-Gentile on land lying west of Edith street; Crossan and Kennedy on land lying east of High street; the lands in controversy lying between, and of that neither party had the actual possession.The appellants contend that the finding of the master is not supported by the evidence, and that, in truth, the record shows beyond controversy that appellants were in the actual possession of the land in question, openly and exclusively.

We have carefully examined the record on this question, as counsel for appellants have insisted upon the point with great earnestness.The record shows that Gentile testified that a powder house built on the land near the junction of High street and the Tejeras road was put up by one of his tenants.Pizutti testified that, under directions of Gentile, he built a fence around the north, south, and west sides of the land in controversy, about two years before this suit was brought; that Crossan objected to the building of the fence while it was being done; but that it was built notwithstanding his objections; and that Crossan then built a fence across the east side of the land in question.The land was thus substantially inclosed, the east fence put up by Crossan separating this land from the lands upon which his house stood.Greenleaf, Capilupi, Krawinkle, and others testify to the existence of the fence around the four sides of this land; and Crossan admits that the three sides were put up by Gentile, and that he put up the fourth or east side fence himself.It appears from the testimony, and is not denied, that Gentile's solicitor called Crossan's attention to the east fence, as defining the possession of the respective parties; and shortly afterwards this fence put up by Crossan disappeared by some unknown agency.Crossan admitted that he saw notices of Gentile's claim of ownership posted on the land as far east as the place where Crossan's house was afterwards built.About two weeks before this suit was brought, Gentile's solicitor saw Crossan's surveyor inside the inclosure, surveying the land.The surveyor...