Haden v. Eaves

• Decision Date: 19 October 1950
• Docket Number: No. 5302,5302
• Citation: 55 N.M. 40,226 P.2d 457,1950 NMSC 50
• Parties: HADEN et al. v. EAVES et al. HADEN et al. v. MANGHAM et al.
• Court: New Mexico Supreme Court

Page 457

226 P.2d 457

55 N.M. 40

HADEN et al. v. EAVES et al.

HADEN et al. v. MANGHAM et al.

No. 5302.

Supreme Court of New Mexico.

Oct. 19, 1950.

Rehearing Denied Jan. 13, 1951.

John R. Brand, Hobbs, Robert W. Ward, Lovington, for appellants.

Atwood, Malone & Campbell, Roswell, for appellees.

McGHEE, Justice.

We have appeals from judgments rendered in cases numbered 7865 and 8147 in the District Court of Lea County. In the first, O. T. Haden and his minor son, Oswald Gail Haden, sued Rose Eaves and others. In the second they sued Thelma V. Mangham and others. In each case O. T. Haden sought to quiet title to a one-sixteenth interest in the east half of Section 1, Township 17 South of Range 38 East, and the minor sought to quiet title to an undivided three-sixteenth interest in the same land.

By stipulation, the parties in case 8147 agreed to be bound by the decision in case 7865 as though consolidated, and that the parties to the latter suit should have the right to appeal on the record in case 7865. The cases have been consolidated and considered here as one appeal. We will refer to the parties as they appeared below.

The trial court held that the plaintiffs had lost their title to the interests claimed by reason of a sale for taxes for the year 1937 on account of which a tax deed was acquired by Thelma V. Mangham. It also found that O. T. Haden had abandoned the property and was guilty of laches. Judgments were rendered on cross-complaints of some defendants quieting their titles against the Hadens.

Haden and his son are the surviving husband and child, respectively, of Cleo Ora Canada Haden, who, at the time of her death, owned an undivided one-fourth interest in the half section above described. Her brother, Charley Jefferson Canada, and her sisters, Thelma V. Mangham and Willie Clifton Canada, each owned a like interest in the land at the time it was rendered for 1937 taxes. Due to a shortage of acreage a one-fourth interest actually amounted to 77.66 acres.

Thelma V. Mangham rendered the entire half section for taxes for the year 1937 in her name, and her sister, Willie Clifton Canada, rendered an undivided one-fourth interest in the half section for 1937 in the name of 'Charles J. Canada Estate.'

On February 4, 1938, Thelma V. Mangham paid to the county treasurer the amount due for taxes on a 106 1/2 acre interest in the half section, and in addition paid the proportionate amount due on a 50 acre interest then owned by W. C. Weatherby upon which she held a tax sale certificate at the time.

The tax authorities allowed Mrs. Canada's claim for exemption as head of a family for the amount of taxes due on her interest, so one-fourth of the amount of the tax was still due on the books of the treasurer.

On the same day Thelam V. Mangham made the tax payments as above set out, she conveyed to J. S. Eaves, predecessor in interest of Rose Eaves, an undivided 11/32 interest in the half section.

An undivided one-fourth interest in the half section was sold for the amount of delinquent taxes. After the sale by Thelma V. Mangham of the 11/32 interest to Eaves, she purchased a tax sale certificate for such 77.66 acre interest. On March 31, 1941, she acquired a tax deed for the interest described in the certificate. There is nothing in the certificate or deed to indicate the ownership of the interest sold. She later sold a part of this acreage to Eaves.

The trial court found as a fact that Thelma V. Mangham did not own any interest in the half section at the time she acquired the tax sale certificate or deed, and concluded that she was not at such times a co-tenant of the owners of the other fractional interests.

After the submission of the case we invited the parties to submit supplemental briefs on the question of whether the interests of the plaintiffs were lost through the tax sale and that they, therefore, had to bear the entire loss, or whether all cotenants lost a proportionate part of the half section. Such briefs were filed and have been considered with the others in the case.

The defendants call our attention to the fact that the case was tried below by all parties and decided by the trial court on the theory that the Haden interests were the ones sold, and the trial court at the request of the plaintiffs and defendants made a finding that the Haden interests were the ones sold for taxes. They say that the plaintiffs should not be allowed to shift their position here. We feel compelled to recognize the force of these contentions as to the adult, O. T. Haden. We recently said in the case of Harper v. Harper, 54 N.M. 194, 217 P.2d 857, that where a finding of fact was made at the request of a party he could not here attack it, and was bound by such finding. We have held many times that cases will be reviewed here on the theory they were presented and decided below. N. H. Ranch Co. v. Gann, 42 N.M. 530, 82 P.2d 632; Horton v. Atchison, T. & S. F. Ry. Co., 34 N.M. 594, 288 P. 1065, and Park v. Milligan, 27 N.M. 96, 196 P. 178.

Is the minor defendant bound by the act of his guardian ad litem in requesting this finding and by the latter's assignments of error, so we may not consider the question raised by the court of its own motion? The point was not briefed by the parties, but we have made a study of the question.

This court in Ortiz v. Salazar, 1 N.M. 355, on its own initiative ordered interest added to a judgment granted the appellee for the time the appellant used his money during minority. Cf. Bent v. Miranda, 8 N.M. 78, 85, 42 P. 91.

In 3 Am.Jur. Sec. 249 (Appeal and Error) it is stated: 'Upon the question whether an infant party may complain in the appellate court of errors not objected to in the trial court, the authorities are not in accord. On the theory that the law jealously guards the rights of infants, and that they are wards of the court and are not to be prejudiced by any act or default of their guardian ad litem, the court being bound to protect their interest notwithstanding the failure of their guardian to do so, the better rule seems to be that the appellate court will protect the rights of infants, although no objection is made or exception is taken in the trial court.'

Annotations on the subject appear in 87 A.L.R. pp. 672 and 675, and in Ann.Gas. 1913B, 443, where cases on both sides of the question are set out. Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 660, and Byrnes v. Butte Brewing Company, 44 Mont. 328, 119 P. 788, Ann.Cas. 1913B, 440, are listed as holding that infants are bound by the same rules as adults. However, a study of these cases shows they lend but little support to such rule. In the Spotts case there was a deficient record and there had not been a compliance with the statute requiring formal exceptions and a motion for new trial. Many cases holding to the contrary are discussed in the opinion, and it is said that if the case had been in equity where there would have been a trial de novo, the court would have considered the claimed errors, citing Revely v. Skinner, 33 Mo. 98.

The opinion in the Byrnes case is qualified by the statement that the court was considering a negligence case, and that the minor was represented by competent counsel and no substantial error was committed against him.

There are many cases from various jurisdictions holding that an appellate court will not permit an erroneous judgment or decree against a minor to stand, notwithstanding the failure of the guardian ad litem to make a proper record; and there are a number of cases where there was an appeal before the court in which the minor had not joined, but the courts observed the errors and reversed the erroneous judgments or decrees on their own motion. We will review a few of them.

In Tillar v. Cleveland, 47 Ark 287, 288, 1 S.W. 516, 518, Mrs. Tillar was the equitable owner of a lot and on her death her son was her only heir; the father of the son entered into an agreement with the holder of the legal title whereby it was agreed that upon payment of certain money the lot would be conveyed to the father of the minor. Suit was filed by the owner of the legal title to foreclose a lien and the infant was made a party. The father defended on the ground of usury, among other defenses, all of which were adopted by the guardian ad litem. An appeal was taken to the Supreme Court, but the minor was not a party thereto. The appellate court on its own motion noticed that the father was erroneously decreed to be the owner of the lot instead of the minor, and said: 'The father could not, by any arrangement entered into with the holder of the legal title, appropriate the property of his minor child. We do not commonly correct errors committed against parties who have not appealed; but the chancellor is the guardian of all infants whose rights are drawn in question before him, and it is our duty to see that they are protected.'

Kempner v. Dooley, 60 Ark. 526, 31 S.W. 145, 147, was a suit to secure an indebtedness of the owner of one of the tracts. The decree erroneously ordered the land of the surety sold first, and in this tract a minor had an interest and was a party defendant. The principal debtor appealed on the ground that the trial court had refused to allow him to amend his answer at the close of the trial and plead usury. The Supreme Court held the allowance of the amendment was a matter in the discretion of the trial court. The error against the minor was noticed although he had not appealed, and the court stated: 'In this case, however, there is no appeal from the decree that Allen Adams' land should be first sold by any of the heirs of Allen Adams. But one of these heirs who was made a party to the suit was an infant at the time of the decree, and still is, and, though she has not appealed, a court of chancery will protect her interest, as minors in a suit in equity are wards of a court of chancery. 'The chancellor is the guardian of all infants whose...