Hart v. Walker.

• Decision Date: 02 December 1935
• Docket Number: No. 4017.,4017.
• Citation: 40 N.M. 1,52 P.2d 123
• Parties: HART et al.v.WALKER.
• Court: New Mexico Supreme Court

40 N.M. 1

52 P.2d 123

HART et al.

v.WALKER.

No. 4017.

Supreme Court of New Mexico.

Dec. 2, 1935.

Appeal from District Court, Curry County; McGhee, Judge.

Action by May Walker Hart and others against B. B. Walker. Judgment for defendant, and plaintiffs appeal, and W. H. Allen, receiver, cross-appeals.

Affirmed and remanded.

Where contract for purchase of state land was canceled by commissioner of public lands for nonpayment of interest, after giving notice and being informed by administrator and one of heirs of deceased purchaser that they wanted it canceled, commissioner held authorized to lease land at his discretion.

Mayes & Rowley, of Clovis, and E. R. Wright, of Santa Fe, for appellants.

A. T. Hannett, of Albuquerque, for appellee and cross-appellant.

BRICE, Justice.

This is an appeal from a judgment of the district court of Curry county, reversing a decision of the commissioner of public lands in a contest proceeding involving the right to lease certain state lands. The commissioner of public lands had canceled leases theretofore made to appellee and issued new ones to appellants. The district court held that appellee and not appellants was entitled to lease the lands from the state.

From the findings made by the court, we take the following as the essential facts: C. S. Hart, deceased, in his lifetime owned large ranching interests in New Mexico, the real estate of which consisted of several thousand acres of patented land, about 5,500 acres of state purchase lands not paid for, and upwards of 17,000 acres leased from the state; all in Curry and Roosevelt counties, N. M.

The appellants are Hart's heirs at law. Upon the death of Hart in September, 1928, the appellee, through fraudulent means secured from appellants, conveyance of title to all of the mentioned property, including an assignment of the state leases; and while thus holding title, on the 31st day of July, 1929, he filed an application with the commissioner of public lands to lease the lands embraced in the Hart lease, which would expire the following October 1st. In his application, he falsely stated that he owned the assignment of the Hart lease, and thus had a preference right to lease the land for another term of five years. He falsely represented that the value of the improvements on the lands he applied to lease, including the state purchase lands, was $420, and fraudulently secured an appraisal in that amount, when in fact they were worth $5,500. That immediately after the filing of such application, Hart's administrator, having been notified thereof by the commissioner of public lands, protested against the leasing of these lands to appellee, though he did not himself apply to lease them for the benefit of Hart's estate. Because of this protest, no action was taken by the commissioner of public lands on the application of appellee until September 6, 1930; on which date Hart's administrator was notified by him that unless there was filed within ten days a formal protest or contest against appellee, accompanied by a formal application to lease the lands, together with the funds for the payment of the first year's rental, a lease would be made to appellee. The administrator, and one of the appellants herein (C. S. Hart, Jr., representing himself and his mother, Mary Walker Hart), after an investigation at the state land office, determined that it was to the best interest of the estate not to lease these lands and so notified the commissioner of public lands. In the month of November, 1930, after the administrator and heirs of Hart had been given ten months in which to lease the land in suit and had refused to do so, the commissioner executed a lease to appellee for 8226.23 acres.

Notice was given by the commissioner of public lands on June 1, 1930, that Hart's state purchase contract would be canceled unless the interest due thereon was paid. No attention was given to such notice, and the commissioner of public lands canceled the contract. Thereafter, in October, 1930, appellee filed an application with the commissioner of public lands to lease the 5551.15 acres of the state purchase lands, which were leased to him the following November. Neither the administrator nor the heirs of Hart have ever taken any steps toward reinstating these state purchase contracts; nor have they offered to pay the interest due the state on the purchase price; nor have they applied to lease these lands.

At all times after March, 1929, appellants knew of the fraud perpetrated on them by appellee and that he had procured assignments of the state lease by false representations; and long before the land was leased to appellee they were treated by the commissioner of public lands as having a preference right to lease the land, and knew that Hart's administrator or appellants could obtain such lease by complying with the rules of the state land office. They did not avail themselves of the offered renewal because it was thought not to their best interests and not because of the fraud of appellee.

The administrator refused to institute this proceeding, though requested to do so by appellants, and thereupon appellants filed the contest.

[1] (1) Hart's state lease was personal property and descended to his administrator. If he had a preference right to a renewal for another term of years under section 132-120, Comp.St. 1929, as claimed, it was waived by his refusal to accept it, well knowing at the time that the lease had been assigned to appellee, and that he was attempting to defraud the estate out of its New Mexico property. The commissioner of public lands evidently looked upon appellee as a trustee, holding for Hart's administrator, for at the administrator's request he held up action on appellee's application nearly a year, and only leased the property to him after due notice to the administrator and his definite refusal to accept a lease, all of which was acquiesced in by two of the appellants, heirs to 13/16 of Hart's estate. It is contended here that Jere D. Hart, heir to the remaining 3/16 interest in the estate was ignorant of all these transactions. Such a proposed finding was requested by appellants, but ignored by the trial court, who did find that Jere D. Hart knew nothing of the administrator's trip to Santa Fé at the time it was determined not to renew the lease. This may be...