Holthoff v. Freudenthal

• Decision Date: 23 December 1916
• Docket Number: No. 1859.,1859.
• Parties: HOLTHOFFv.FREUDENTHAL ET AL.
• Court: New Mexico Supreme Court

22 N.M. 377

162 P. 173

HOLTHOFF

v.FREUDENTHAL ET AL.

No. 1859.

Supreme Court of New Mexico.

Dec. 23, 1916.

Syllabus by the Court.

In an action to quiet title under section 4387, Code 1915, possession under a deed from a grantor in possession is sufficient evidence of title to maintain the action.

A motion to reopen a case for further proofs is addressed to the discretion of the trial court, which discretion will not ordinarily be disturbed.

Additional Syllabus by Editorial Staff.

The “interest” required by Code 1915, § 4387, providing that suit may be brought to quiet title by any one having or claiming an interest therein, must be an interest in the title.

Appeal from District Court, Doña Ana County; Medler, Judge.

Suit to quiet title by Henry C. Holthoff against Phœbus Freudenthal and others. From a judgment for plaintiff, the named defendant appeals. Affirmed.

Reopening a case for additional evidence is discretionary.

N. C. Frenger, of Las Cruces, for appellant.

Holt & Sutherland, of Las Cruces, for appellee.

PARKER, J.

Appellee brought an action to quiet title of a certain piece of land in Doña Ana county, N. M. He showed that he went into possession of the property under a warranty deed from his grantor, who was then in possession, and that he had continued to hold under his said deed for some time before the action was brought. At the close of the testimony for the appellee appellant moved for a nonsuit upon the grounds that appellee had not made out a prima facie case sufficient to support an action to quiet title. This motion was overruled, and thereupon appellant introduced evidence for the purpose of showing that appellee had failed to establish prima facie title in himself. This evidence was introduced for the purpose of showing that a certain paper title emanating from the incorporation of Mesilla was invalid, and for the purpose of showing that appellee's grantor could have had no title at the time she made the deed to the appellee. Counsel states in his brief that “in the nature of things Nellie R. Chaves could have no title to the particular premises now in question,” and he relies upon three deeds which he introduced in evidence.

In regard to the first proposition it becomes immaterial in this case to determine whether the incorporation of Mesilla made a valid deed to appellee's grantor, because no reliance is placed upon the same by appellee.

In regard to the second proposition it is not pointed out in the brief, nor have we been able to ascertain from a reading of the record, just how the three deeds mentioned show that in the nature of things appellee's grantor could have had no title.

Appellee relies in this court, as he did in the court below, upon his deed from his immediate grantor, then in possession, and his holding and possession thereunder since receiving the conveyance.

Counsel for appellant argues that in a suit to quiet title the plaintiff must recover upon the strength of his own title, and that, in the absence of proof of absolute title, that is, one emanating from sovereignty, and good against the world, a nonsuit should be entered against him. He cites many cases in support of his contention, all of which we have examined.

Counsel for appellee take the position that possession under a deed, with claim of ownership, is sufficient evidence to establish a prima facie title in an action to quiet title, as against a defendant not showing a better title. The issue therefore is very narrow and distinct.

[1] The right asserted in this case is regulated by statute in all, or nearly all, of the states. The present statutes are the out-growth of two equitable doctrines which have long been firmly established, and which were presented by means of bills of peace, or bills to remove cloud from title.

[3] Our statute (section 4387, Code 1915) is as follows:

“An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto.”

It is clear that the “interest” had or claimed in the land by plaintiff under this statute must be an interest in the title, else there is no title to quiet. Stanton v. Catron, 8 N. M. 355, 45 Pac. 884.

The allegation in the complaint is that plaintiff is the owner in fee simple and in possession of the premises. As before stated, plaintiff relies upon possession under a deed from a grantor who also had possession. In this connection possession becomes of the greatest importance as evidence of title.

“The possession of real estate is prima facie evidence of the highest estate in the property, to wit, a seisin in fee.” Hill v. Draper, 10 Barb. (N. Y.) 458.

See, also, Chamberlayne on Evidence, § 1192; 12 Ency. of Evid. pp. 539, 617; Jackson v. Waltermire, 5 Cow. (N. Y.) 299; Bradshaw v. Ashley, 180 U. S. 59, 21 Sup. Ct. 297, 45 L. Ed. 423; Loomis v. Roberts, 57 Mich. 284, 23 N. W. 816; Weeks v. Cranmer, 18 S. D. 441, 101 N. W. 32; South Chicago Brewing Co. v. Taylor, 205 Ill. 132, 68 N. E. 732.

Some of the cases cited by counsel for appellant well illustrate the importance of actual possession in proceedings of this kind. Thus in Knox v. Gibson, 23 Colo. App. 402, 128 Pac. 470, the plaintiff alleged that he was the owner and in possession of the land, but there was no attempt to prove actual possession, and from the record the court assumed that the land was vacant. The court said:

“Hence, if the plaintiff had possession at all, it must have been constructive possession and dependent entirely upon whether or not he proved title in himself.”

In Empire Ranch, etc., Co. v. Webster, 52 Colo. 207, 121 Pac. 171, the plaintiff was in constructive possession only of the premises, he relying upon a title coming down through a trust deed from a person not showing to have had title from the government nor from any other source, nor showing to have had possession at the time the trust deed was executed. The court said:

“Plaintiff's title fails absolutely, and therefore there is no constructive possession. Prima facie title has not been made out, even within the meager requirements of Mitchell v. Titus, 33 Colo. 385, 80 Pac. 1042, and the court is not disposed to further relax the already liberal rule there announced. At most there is proof of prima facie claim of title merely. Had the evidence shown that Adams was in actual possession of the land when he executed the deed of trust, then a different case would be presented, and such fact might bring plaintiff within the rule laid down in Mitchell v. Titus, supra, and other decisions of this court, provided a legal foreclosure of that instrument had been effected.”

In Mitchell v. Titus, 33 Colo. 385, 80 Pac. 1042, cited in the foregoing case, the evidence was that long prior to the inception of a tax title one Wolff, then in possession as owner of the property in question, made his warranty deed purporting to convey the same in fee to the plaintiff. At the time of the bringing of the action the...