Gillett v. Warren

• Decision Date: 23 August 1900
• Citation: 62 P. 975,10 N.M. 523
• Parties: GILLETTv.WARREN
• Court: New Mexico Supreme Court

10 N.M. 523

62 P. 975

GILLETT

v.WARREN

Supreme Court of the Territory of New Mexico.

Aug. 23, 1900.

Syllabus by the Court.

1. Under the community system in this territory, a surviving husband has power, exclusive of statutes for administration of estates of deceased persons, to sell community property to pay community debts.

2. Specific performance of a contract for the sale of a piano to a deceased wife will not be enforced on the ground of its special or peculiar value, where the surviving husband, for the purpose of paying a community debt, has transferred the same and put a money value thereon.

3. Insolvency of the vendor, standing alone, will not authorize the specific enforcement of a contract for the sale of chattels, not furnishing, for other reasons, a basis for equitable cognizance.

Appeal from district court, Bernalillo county; before Justice J. W. Crumpacker.

Action by S. B. Gillett against Mrs. O.S. Warren. Judgment for plaintiff, and defendant appeals. Reversed.

This action was commenced by appellee to compel the specific performance of a written contract entered into between appellant and one Mattie Jane Gillett on April 14, 1891, for the sale of a piano upon the following terms: The original purchase price was $400, to be paid in installments of $20 on April 14, 1891, and monthly thereafter until the purchase price was fully paid; the title to remain in the vendor until the purchase price was paid, when the vendor was to give a bill of sale. In case of failure to make the payments as specified, the vendor had the right to retake the property. The piano was delivered under the contract, and all but $143.90 of the purchase price was paid, down to March 14, 1893, when the vendee dies intestate, leaving a surviving husband, the appelle, and a minor child. On April 14, 1893, the whole of the balance of the purchase price being then due, the surviving husband, with the consent of appellant, delivered the piano to a third party, who paid $50 to appellant on said balance, and who agreed with the surviving husband to complete the purchase price, and then to pay him $175 for his interest, or the interest of the estate of his deceased wife, in said piano. The vendee of the husband never made any further payments to appellant, and on September 14, 1893, appellant, took possession of the piano from the vendee of the husband without his knowledge, claiming a forfeiture of the contract. Appellant had not up to that time insisted upon the payments being made monthly, as required by the contract. In November, 1893, the surviving husband tendered appellant the amount still remaining due on the piano, which was refused on the ground of a forfeiture of the contract for nonpayment of the installments of the purchase price as they became due. In November, 1897, appellee was appointed administrator of the estate of his deceased wife, and brought this action, at which time the appellant was insolvent. Appellant demurred to the amended complaint, raising the points raised here, which was overruled. She then answered. The cause was referred to a referee, who reported, recommending a decree for specific performance of the contract, and that appellee recover $100 as rent for said piano, less the $93.90 still remaining due on the purchase price. This report was confirmed by the court, and a decree entered accordingly.

Specific performance of a contract for the sale of a piano to a deceased wife will not be enforced on the ground of its special or peculiar value where the surviving husband for the purpose of paying a community debt has transferred the same and put a money value thereon.

Childers & Dobson, for appellant.

Felix H. Lester, for appellee.

PARKER, J.

(after stating the facts). The interest or property of the wife in the piano, under the contract, was community property. Under the community system in force in this territory, and as it existed under the laws of Spain and Mexico, the surviving husband has the right to administer upon community property to the extent, at least, of selling the same to pay the debts of the community. And this is true notwithstanding the statutes for the administration of the estates of deceased persons; the latter being held to be in addition to, and not exclusive of, the right of the husband to administer to the extent of paying community debts. Crary v. Field, 9 N.M. 222, 50 Pac. 342. The decision in Crary v. Field had reference...