Giovannini v. Turrietta
Decision Date | 31 May 1966 |
Docket Number | No. 7718,7718 |
Citation | 414 P.2d 855,76 N.M. 344,1966 NMSC 103 |
Parties | Natividad T. GIOVANNINI, Plaintiff-Appellant, v. Thomas G. TURRIETTA, Ruth Turrietta and Cipriana Turrietta, and all unknown heirs, living or dead, of Jose O. Turrietta, Defendants-Appellees. |
Court | New Mexico Supreme Court |
Plaintiff, Natividad T. Giovannini, has appealed from a judgment quieting title to a 7.4 acre tract of land in Thomas G. Turrietta and his sister, Ruth Turrietta.
The parties are a son and daughter of Jose O. Turrietta and his wife, Lasarita, both deceased. Following the death of Mr. Turrietta, senior, in 1945, the widow and daughters, Natividad and Cipriana, conveyed the real estate involved in this action to Thomas and Ruth Turrietta.
The trial court found:
From those findings, the court concluded that the deed vested fee simple title in Thomas Turrietta and Ruth Turrietta and that they additionally have acquired title by adverse possession. Those findings are the facts upon which the case rests in this court on appeal unless set aside for lack of support in the evidence. American Hospital and Life Insurance Co. v. Kunkel, 71 N.M. 164, 376 P.2d 956. Appellants have only made a generalized attack on all findings of the trial court, except that of adverse possession which is specifically challenged and that of consideration for the deed which is discussed in the brief without a specific point relied upon for reversal. The attack on all other findings amounts only to a statement that the court's findings were wrong while those proposed by appellants were correct. This failure is in direct violation of the rules governing preparation of briefs. Supreme Court Rule 15(6) (§ 21--2--1(15)(6), N.M.S.A. 1953); Michael v. Bauman, N,.m., 413 P.2d 888, filed May 2, 1966. The trial court's findings, not properly attacked, are conclusive on appeal. Michael v. Bauman, supra; Bogle v. Potter, 68 N.M. 239, 360 V. of F.W., of Farmington v. Norris, 53 v. of F.W., of Farmington v. Norris, 53 N.M. 58, 201 P.2d 777; Swallows v. Sierra, 68 N.M. 338, 362 P.2d 391.
It is, of course, axiomatic that if the deed constituted a valid conveyance of the real estate in issue here, the question of whether title has been established in appellees by adverse possession becomes immaterial. Validity of the deed is challenged upon the ground that (1) it was the result of undue influence, and (2) it was without consideration
In order to set aside or hold ineffective a deed such as the one in this case, the appellants have the burden of establishing by clear, satisfactory and convincing evidence that the grantors, at the time of its execution, did not understand in any reasonable manner the nature of the particular transaction and the effect and consequences upon their rights and interests. Foster v. Foster, 223 Iowa 455, 273 N.W. 165; Else v. Fremont Methodist Church, 247 Iowa 127, 73 N.W.2d 50. The Annotator 70 A.L.R.2d 591, 592 expresses the general rule under which the exercise of undue influence will be inferred as:
'* * * where one person exercises such dominion over the will of another as to cause the latter to confer a benefaction which would not have been made if the benefactor had exercised his own deliberate judgment, reason, or discretion.'
Relying strongly upon Cardenas v. Ortiz, 29 N.M. 633, 226 P. 418, appellants appear to argue that the mere relationship between the parties creates a presumption of undue influence in obtaining the deed upon which appellees' title is based. However, Cardenas is clearly distinguishable upon its facts, and the inference of undue influence applied only in circumstances where there was a showing of strong dominance by the grantee over the grantor. There the grantors were aged persons, unable to read or write either the English or Spanish language; they could not speak in English; were mentally and physically feeble and hence readily susceptible to influence. The defendant, a nephew, had acquired a great influence over them; the deed was wholly without consideration; and the court found that its execution was obtained through undue influence. This court said in Cardenas that those findings supported by facts and circumstances from which inferences, conclusions or deductions could be drawn would not be disturbed on appeal. See, also, Walters v. Walters, 26 N.M. 22, 188 P. 1105. A comparison shows that the court in the instant case, on the contrary, found that there was no indication or proof of fraud or of undue influence and that there was...
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Ferrill, Matter of
...by the weaker or less dominant party in Trigg. Nor do Walters v. Walters, 26 N.M. 22, 188 P. 1105 (1920) and Giovannini v. Turrietta, 76 N.M. 344, 414 P.2d 855 (1966), cited in Galvan, belie the view that a showing of dominance along with a confidential relation is sufficient, but not neces......
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