Gish v. Hart

• Decision Date: 21 February 1966
• Docket Number: No. 7690,7690
• Citation: 1966 NMSC 28,411 P.2d 349,75 N.M. 765
• Parties: Harold S. GISH and George F. Norton, Jr., Plaintiffs-Appellants, v. Jack HART, Mrs. Evelyn Norton Queener, Mary Ann Amsbary and Marjorie N. Howard Johnson, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 349

411 P.2d 349

75 N.M. 765

Harold S. GISH and George F. Norton, Jr., Plaintiffs-Appellants, v. Jack HART, Mrs. Evelyn Norton Queener, Mary Ann Amsbary and Marjorie N. Howard Johnson, Defendants-Appellees.

No. 7690.

Supreme Court of New Mexico.

Feb. 21, 1966.

Dazzo, Dazzo & Ashby, Albuquerque, for appellants.

Hammel Carrell, Lovington, for appellees.

CARMODY, Chief Justice.

Plaintiffs have appealed from a judgment dismissing their suit to quiet title to a 1/64th interest in all oil, gas, minerals and mineral substances in and under a half section of land in Lea County, New Mexico, and from a judgment on a counterclaim quieting title in defendants to the same interest.

On November 12, 1935, Henry Kemp, a New York dealer in securities and investments, conveyed to George F. Norton, by mineral deed, the 1/64 interest in the mineral rights which is the subject of this suit. The deed was recorded in the Deed Records of Lea County.

Plaintiffs in the trial court, George F. Norton, Jr., and Harold S. Gish, lessee of his co-plaintiff, attempted to show that George Francis Norton, father of plaintiff Norton, Jr., who lived in Greenport, New York, in 1935, was the buyer of the mineral interest. Defendants on the other hand contended that George Freer Norton, who lived in Norwich, New York, in 1935, was the man who bought the interest from Kemp. Defendants Queener, Amsbary and Johnson claim as devisees of George Freer Norton, and defendant Hart as their grantee.

Both George F. Nortons are now deceased. Neither side was able to produce the original deed or any writing directly linking its George F. Norton with Henry Kemp.

The trial court made the following findings of fact:

'3. That George F. Norton, grantee in the above described deed, was one and the same person as George Freer Norton, whose address at the time of execution and delivery of said deed was 27 East Park Place, Norwich, New York. That it has been stipulated by the parties hereto that Mrs. Evelyn Norton Queener, Mary Ann Amsbary and Marjorie N. Howard Johnson, Defendants and Counterclaimants, are the sole and only devisees under the last will and testament of the said George Freer Norton, and together with their grantee, Jack Hart, are the sole owners of and successors to the title and interest of said George Freer Norton.

'4. That the Court was not impressed with the testimony of Henry Kemp, but found his memory unreliable, untrustworthy and evasive, and not susceptible of belief; and that Henry Kemp had no recollection of the transaction in question whatsoever.

'5. That George F. Norton a/k/a George Francis Norton, deceased, father of Plaintiff, George F. Norton, Jr., did not purchase the subject property from Henry Kemp.'

Plaintiffs first contend that the trial court's findings of fact, conclusions of law, and judgment quieting title in defendants are not supported by the evidence, and that the court erred in not adopting plaintiffs' requested findings and conclusions. No citation is necessary for the proposition that if the trial court's findings are based on substantial evidence, they must stand as the facts before us. The fact that there may be other evidence in the record to support the findings requested by the plaintiffs would then be of no consequence.

The rule is well settled in this jurisdiction that in a suit to quiet title the plaintiff must recover, if at all, on the strength of his own title, and not on the weakness of his adversary's claim. Rock Island Oil and Refining Co. v. Simmons, 1963, 73 N.M. 142, 386 P.2d 239; Ronquillo v. Sandoval, 1962, 71 N.M 459, 379 P.2d 611; New Mexico Realty Co. v. Security Investment & Development Co., 1922, 27 N.M. 664, 204 P. 984. Plaintiffs do not question this proposition.

In order to successfully attack the trial court's judgment, plaintiffs must overcome Finding No. 5, that George Francis Norton did not purchase the property from Henry Kemp. The only evidence offered by plaintiffs to show such purchase is the testimony of Henry Kemp, but the trial court found in its Finding No. 4 that Kemp's memory was 'unreliable, untrustworthy and evasive, and not susceptible of belief' and that Henry Kemp 'had no recollection of the transaction in question whatsoever.' Thus, unless Finding No. 4 is not supported by substantial evidence, plaintiffs' attack on Finding No. 5 is to no avail.

Supreme Court Rule 15(6) states:

'A contention that a verdict, judgment or finding of fact is not supported by substantial evidence will not ordinarily be entertained, unless the party so contending shall have stated in his brief the substance of all evidence bearing upon the proposition, with proper references to the transacript.

Such a statement will be taken as complete unless the opposite party shall call attention in like manner to other evidence bearing upon the proposition.'

Plaintiffs, in their attack on the court's findings, present, for all practical purposes, no discussion at all of evidence which sustains the verdict, in either their brief-point attacking the findings or in the extensive statement of facts. The plaintiffs direct the court's attention only to evidence contrary to the trial court's findings, in violation of Rule 15(6). Mountain States Telephone and Telegraph Co. v. Suburban Telephone Co., 1963, 72 N.M. 411, 384 P.2d 684, appeal dismissed and cert. denied, 376 U.S. 648, 84 S.Ct. 982, 11 L.Ed.2d 979, pet. for rehearing denied, 377 U.S. 940, 84 S.Ct. 1331, 12 L.Ed.2d 304; Minor v. Homestake-Sapin Partners Mine, 1961, 69 N.M. 72, 364 P.2d 134. In reviewing an attack upon a finding, it is the supporting evidence, not that adverse to the finding, that ordinarily determines the issue. Sundt v. Tobin Quarries, 1946, 50 N.M. 254, 175 P.2d 684, 169 A.L.R. 586. Neither has the appellant at any point in his brief quoted the findings of the trial court which he attacks. Bogle v. Potter, 1961, 68 N.M. 239, 360 P.2d 650. In such case the trial court's findings are the facts upon which the decision of this court must be based. Mountain States Telephone and Telegraph Co. v. Suburban Telephone Co., supra; Petty v. Williams, 1963, 71 N.M. 338, 378 P.2d 376. The court, in Sundt v. Tobin Quarries, supra, said:

'The defendant stated the substance of the testimony favorable to its contention that requested finding 24 should have been accepted; but * * * it made no reference to much that supports findings XX, XXI and XXII. In reviewing an attack upon a finding it is the supporting evidence, not that adverse to the finding, that ordinarily determines the issue. The record contains more than 500 pages of typewriting, and for the members of this court to read the entire record in considering each finding attacked to discover whether it is supported by substantial evidence would entail an unnecessary burden on the members of the court.'

See also, Provencio v. Price, 1953, 57 N.M. 40, 253 P.2d 582.

In any event, Findings 4 and 5 are supported by substantial evidence, and we note the following to illustrate that Finding 4 was amply supported by the evidence: Prior inconsistent statements by Henry Kemp concerning his memory of his grantee, e. g., 'If I had seen that fellow George F. Norton on the street a week after the sale, I wouldn't have recognized him'; prior assertions by Kemp that he had no knowledge, even an address, of Norton; Kemp's statement that, 'All I know was that I sold it; that's all I know.'

Even though plaintiffs strongly argue that a review of Kemp's testimony at the trial shows that it should have been believed, nevertheless such an argument seeks to have this court substitute its determination of credibility for that of the trial court, and this we cannot do. The rule and the reason therefor is plainly stated in Terrel v. Lowdermilk, 1964, 74 N.M. 135, 391 P.2d 419, where we said:

'* * *. An appellate court must rely upon the fact finder for the determination of the facts of a case. Under our system of jurisprudence, it is simply not feasible for an appellate court to retry a case which is based upon conflicting testimony. The appellate court must restrict itself to determination of questions of law and leave factual determinations to the trial court, or jury as the case may be, which has the opportunity of hearing the witnesses testify and observing their demeanor and conduct while on the witness stand. A witness's testimony may, at the time of trial, be evasive instead of straight-forward, lacking in candor rather than truthful, or be such as makes it apparent to the listener that he is being less than honest...