Horn v. Lawyers Title Ins. Corp.
| Decision Date | 30 November 1976 |
| Docket Number | No. 10615,10615 |
| Parties | , 94 A.L.R.3d 1182 Calvin P. HORN and C. Ruth Horn, his wife, and H. B. Horn and Lucille Horn, his wife, Plaintiffs-Appellees, v. LAWYERS TITLE INSURANCE CORPORATION, Defendant-Appellant, v. A. E. THOMAS and Mura Thomas, his wife, Robert P. Tinnin and Frances Tinnin, his wife,Arthur P. Quinn and Elizabeth Quinn, his wife, and M. M. Hardin, Involuntary Plaintiffs-Appellees. |
| Court | New Mexico Supreme Court |
This is an appeal from a judgment of the District Court ofBernalillo County in an action to recover damages for breach of a contract of title insurance. Defendant, Lawyers Title Insurance Corporation, will be referred to as 'defendant'. The real estate with which we are concerned will be referred to as the 'Montoya Tract'. Defendant, New Mexico Title Company. merely acted as an agent for defendant and is not involved in the appeal.
Plaintiffs and involuntary plaintiffs purchased the Canon de San Diego Grant, a tract of land in Sandoval County, New Mexico, consisting of approximately 116,000 acres. Simultaneously therewith, they obtained from defendant a policy of title insurance covering portions of the property, including the Montoya Tract. This policy was written on June 27, 1961, at Albuquerque, Bernalillo County, New Mexico. By reason of such purchase, plaintiffs acquired a one-fifth undivided interest in and to the entire tract. In 1966, after having disposed of portions of the approximately 116,000 acres, plaintiffs and involuntary plaintiffs divided among themselves the acreage then remaining, and plaintiffs thus acquired title to the Montoya Tract.
Sometime after 1966, plaintiffs learned of adverse claims to the Montoya Tract, and sued in the District Court of Sandoval County to quiet title against Epifanio Montoya, et al. The result of this litigation was that the court, in substance, found the title of Epifanio Montoya, et al. to be superior to that of plaintiffs, and ordered plaintiffs' complaint dismissed with prejudice.
Defendant refused to indemnify plaintiffs under the policy of title insurance for the loss of the Montoya Tract, and this action was filed. The issues were tried to a jury. It was undisputed that prior to issuing its policy, defendant, through its agent, conducted a search of the records of Sandoval County, but failed to discover the adverse title, although the instruments showing the title of Epifanio Montoya, et al. were duly recorded in Sandoval County.
Epifanio Montoya was called as a witness for defendant. He testified that from 1952 until 1969 or 1971, he grazed cattle, and raised hay, oats and potatoes on the Montoya Tract; that during those years he stayed there on weekends during the late spring and summer and early fall, and made occasional visits at other times of the year; that he generally kept about two head of horses there from May to November; that whenever he was there, he lived in a house on the property; and that, in addition to the house, there were some corrals and a garage thereon. This testimony was undisputed.
Plaintiff, Calvin Horn, testified that in the winter of 1961, he drove over parts of the Canon de San Diego Grant, but did not visit the area of the Montoya Tract because snow had rendered the road impassable. The evidence showed that at all other times of the year, the Montoya Tract was easily accessible by automobile. An agent of defendant, prior to the issuance of its policy, flew over the approximately 116,000 acres in an airplane, but did not specifically view the Montoya Tract.
The policy of title insurance was received in evidence. It was, for the most part, on a printed form furnished by defendant. The 'Conditions and Stipulations' of the policy provided:
At the conclusion of the trial, a verdict was returned awarding damages against defendant and for plaintiffs in the sum of $57,000. Judgment was entered thereon, and defendant appeals.
Defendant's principal point relied on for reversal is that plaintiffs' loss falls within the exception pertaining to the 'rights, titles or occupancies of parties in actual possession.' We have said that actual possession of land consists in exercising acts of dominion over it, and in making the ordinary use of it to which it is adapted, and in taking the...
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