Hollingsworth v. Hicks, 5498
| Decision Date | 13 June 1953 |
| Docket Number | No. 5498,5498 |
| Citation | 1953 NMSC 45,57 N.M. 336,258 P.2d 724 |
| Parties | HOLLINGSWORTH v. HICKS et al. |
| Court | New Mexico Supreme Court |
Harry L. Bigbee and Donnan Stephenson, Santa Fe, for appellant.
Gilbert & Gilbert and L. C. White, Santa Fe, for defendants and cross-plaintiffs Williams.
M. W. Hamilton, Santa Fe, for defendants and cross-defendants Hicks.
Action by Margaret Hollingsworth against Worley Edward Hicks, W. A. Williams and Sarah E. Williams, his wife, and W. A. Williams, Jr., and Dorothy J. Williams, his wife, seeking to quiet title in herself to an alleged one-half undivided interest in certain real estate situated in Rio Arriba County. From a judgment rendered in favor of the defendants, the plaintiff appeals.
At the outset it is to be observed that the whole theory of plaintiff's (appellant) case, as well as her entire contention is that, since the balance of the purchase price of the land contract was paid during coverture, there arises a presumption to the effect that such property is community property.
The status of real property is governed in this state by statute. Thus property owned by either spouse before marriage or acquired after marriage by gift, bequest, devise or descent, with the rents, issues and profits is the separate property of that spouse. Sections 65-304 and 65-305, 1941 Compilation. All other property acquired by either husband or wife or both after marriage is community property. Section 65-401, 1941 Compilation.
Although under our statute the presumption of community property arises from the naked fact that it was acquired during marriage. Barnett v. Hedgewood, 28 N.M. 312, 211 P. 601; Carron v. Abounador, 28 N.M. 491, 214 P. 772; Roberts v. Roberts, 35 N.M. 593, 4 P.2d 920; In re White's Estate, 41 N.M. 631, 73 P.2d 316; Loveridge v. Loveridge, 52 N.M. 353, 198 P.2d 444, yet, when, as in this case, upon the exhibition of the whole title it appears that its origin preceded the marriage, and that it was separate property of Hicks, we are of the opinion that the presumption no longer prevails. Strong, Trustee v. Eakin, 11 N.M. 107, 66 P. 539; In re White's estate, supra.
The facts shown by the record, essential to an understanding of our holdings are, substantially, these:
That on November 19, 1928, H. L. Hall and Marguerite B. Hall, his wife, entered into a contract with Worley Edward Hicks, then a single man, whereby the Halls agreed to convey certain real estate situated in Rio Arriba County to him. The covenants of the contract material to this cause are as follows:
'Witnesseth, that for and in consideration of--$4,200.00--to be paid to the party of the first part by the party of the second part as hereinafter set forth, and the other covenants contained herein, the party of the first part agrees to sell and convey to the party of the second part by deed of warranty the following described tract of land * * * (description).
During the month of December in the year 1928 Worley Edward Hicks went into possession of this land moving thereon twenty-eight or thirty head of cattle, eight horses, one plow, harrows and other farming implements.
On July 29, 1929, plaintiff and Hicks were married to each other at Pagoso Springs, Colorado, and lived together as man and wife until March 29, 1935, at which time she obtained a divorce from him. The plaintiff had no money whatever or any property at the time she married the defendant.
On December 1, 1929, Hicks made a payment of $800, on his contract, and on December 1, 1930, he made another payment of $364.49. This money was derived from the sale of his own cattle. On December 1, 1934, plaintiff and this defendant jointly executed a mortgage on the land in question to the Land Bank Commissioner, Wichita, Kansas, to secure the sum of $3,400. The first installment on this mortgage was to become due and payable on June 1, 1938. Thereafter to be paid every six months until finally discharged.
On the same date the defendant, Hicks, executed his personal note in the sum of $700 to pay Hall. Upon the payment of the balance due on the purchase contract H. L. Hall and Marguerite B. Hall made, executed and delivered to the defendant their warranty deed for said property. No part of the above loans were ever paid during the marriage between plaintiff and defendant. The two loans were paid subsequent to the divorce by the defendant from funds derived from the sale of his cattle. From 1935 to 1943 plaintiff and this defendant, although not remarried, lived together as man and wife, during which time he supported her and two minor children one of them from a previous marriage.
On February 24, 1947, Worley Edward Hicks and Annie Hicks, his present wife, entered into a contract with W. A. Williams and Sarah E. Williams, his wife, and W. A. Williams, Jr., and Dorothy J. Williams, his wife, whereby they agreed to convey the land in question to the Williams, together with other personal property located on said land. On July 14, 1949, the present suit was instituted and upon the conclusion of the trial the court made the following findings of fact:
'3. Prior to the marriage between the plaintiff and Worley Edward Hicks, the defendant Worley Edward Hicks contracted to purchase all of the land and real estate at issue in this cause from one Leroy Hall and wife for a total purchase price of $4,200.00, upon which said defendant paid the sum of Five Hundred Dollars ($500.00) at the time of entering into said contract. Said contract was in words and figures as specified in defendant Hicks' Exhibit No. 2, introduced in evidence herein.
'4. Subsequent to the marriage between the plaintiff and the defendant, Worley Edward Hicks, the said defendant made additional payments upon the purchase price under said contract, the first of said payments being in the sum of Eight Hundred Dollars ($800.00) and the second thereof in the sum of about Three Hundred Dollars ($300.00), both of said payments were made from the proceeds of the sale of properties owned by said defendant prior to his said marriage.
'5. Thereafter and on or about the 1st day of December, 1934, with the assistance of said Leroy Hall, and in order to enable the defendant, Worley Edward Hicks, to complete the purchase of said land which he had so contracted to buy the said defendant mortgaged the said property to Federal Farm Loan Association and paid the remainder of the purchase price thereof from the proceeds of said mortgage. Said Hall and wife deeded said property to said defendant at or about the time of the execution of said mortgage. The said mortgage was as specified in plaintiff's Exhibit No. 2, and was joined in by the plaintiff, as wife of said defendant.
'6. Thereafter and on or about January 21, 1935, the plaintiff filed suit against the defendant Hicks in the District Court of the State of New Mexico within and for the County of Rio Arriba in said Cause No. 3493 on the docket of said court. Final decree in said cause was entered on the default of the defendant Hicks on March 29, 1935, granting the plaintiff a divorce from said defendant.
Exhibits, 3, 3A, 3B and 3C, introduced in evidence herein.
'8. The complaint in said Cause No. 3493 alleged only as follows with respect to the real property of the parties thereto:
"That during the said marriage, the parties hereto have acquired the following described property, to-wit: 1 ranch consisting of 171 acres of land.' And did not allege that any of said property was the community property of the parties to said cause.
'9. That the decree in said Cause No. 3493 merely found as follows: 'That during the said marriage the parties have acquired the following described property, to-wit: 1 ranch consisting of 171 acres of land.'
'10. That the decree in said cause merely concluded as a matter of law with respect to the real estate referred to therein: 'That the defendant herein is entitled to retain the ranch and ranch property and continue to farm the same, except such part as is divided between the parties hereto as the interest of each in and to the personal property of the parties, and the said defendant will be solely responsible for the encumbrances and indebtedness which now exists against said property as hereinbefore listed.' and contained no conclusion of law that said real estate was the community property of the parties to said cause.
'11. That in ordering portion of said decree in said cause it was not decreed that said real estate was the community property of...
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