Hoskins v. Talley

• Decision Date: 17 November 1923
• Docket Number: No. 2725.,2725.
• Parties: HOSKINSv.TALLEY ET AL.
• Court: New Mexico Supreme Court

29 N.M. 173

220 P. 1007

HOSKINS

v.TALLEY ET AL.

No. 2725.

Supreme Court of New Mexico.

Nov. 17, 1923.

Syllabus by the Court.

One who holds uninterrupted, continuous, adverse possession, for 10 years or more, of lands which have been granted by the governments of Spain, Mexico, or the United States, thereby acquires complete title thereto, and also defeats the right of the prior owner to effectually maintain a suit to recover the same.

Findings of fact which are not supported by substantial evidence cannot be upheld upon appeal.

Facts which establish estoppel in pais must ordinarily be pleaded, but this need not be done in a suit to quiet title where the plaintiff does not set forth nor plead in his complaint the precise claim of title which will be relied upon, nor the muniments establishing the same. In such case, facts establishing such estoppel may be proven under the general issue.

Where a person has acquired complete title to lands by adverse possession, and afterwards verbally recognizes the title of the prior owner and verbally agrees to accept from such prior owner a deed to a part of such lands, in consideration of which she verbally agrees to waive her claim to the remainder, such person does not thereby divest herself of such title nor invest the same in such prior owner, and such acts cannot estop the holder of such title by adverse possession, nor those claiming under her, to assert the same.

Appeal from District Court, San Miguel County; Leahy, Judge.

Suit by Daniel T. Hoskins, trustee, against John Archer Talley and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Facts which establish estoppel in pais must ordinarily be pleaded, but not in suit to quiet title where the plaintiff does not set forth nor plead in his complaint the precise claim to title which will be relied on, nor the muniments establishing the title, but in such case facts establishing such estoppel may be proved under the general issue, under Code 1915, § 4388.

W. J. Lucas, of East Las Vegas, for appellants.

Luis E. Armijo, of Las Vegas, and O. O. Askren, of East Las Vegas, for appellee.

BRATTON, J.

This suit was instituted by the appellee, Daniel Hoskins, trustee, against the appellants, John Archer Talley and Pauline C. Pettys, to quiet title to two certain described tracts of land situated within the Las Vegas Grant, the first of which contains 180 acres, and the second of which contains 173.10 acres. Appellants by answer denied appellee's title, and by cross-complaint specifically pleaded title in themselves by adverse possession under the statute of limitations, by setting forth that they and their predecessors in interest had, in good faith and under color of title, held the continuous, complete, exclusive, and hostile possession of such lands for more than 25 years next preceding the filing of such cross-complaint, during which time they had regularly paid all taxes levied and assessed against the same. Appellee filed his amended answer to such cross-complaint, in which he denied the title of the appellants, and further pleaded that they were estopped to assert such title by virtue of a certain agreement had between Cora Archibald, under whom they claim, and the board of trustees of the town of Las Vegas, who was then administering the affairs of such grant. The trial resulted in a decree by which appellee's title was quieted, and by which the appellants were denied any relief under their cross-complaint. From such decree this appeal has been perfected.

While somewhat reverse to the order in which counsel have presented the questions involved, we will first dispose of the appellants' contention that the finding of the trial court that they, and their predecessors in interest, had not held actual adverse possession of the lands involved, under color of title, for 10 years or more, prior to the commencement of this suit, is not supported by any substantial evidence. In determining this question, we recognize the often repeated rule that findings of fact made by the trial court, which are supported by substantial evidence, will not be disturbed on appeal. We have carefully and repeatedly read the record in this case, and have concluded this contention must be sustained. The overwhelming and undisputed facts shown in the record disclose that Cora Talley, subsequently Cora Archibald, under whom appellants claim, acquired deeds to such lands during the year 1889; that such deeds were filed for record during that year; that such lands were substantially inclosed with fence during that year; that such fence remained in the same place and position until during the year 1903, or within two or three years thereafter, when the string along the eastern boundary line which ran in a northeasterly and southwesterly direction was moved, there being considerable dispute in the evidence with regard to the exact place to which it was then moved; later and during the year 1910, this fence was again moved from the place to which it was first moved to the west side of the Mora road. It is agreed by all parties, however, that by such change in 1910 it was moved in an easterly direction 680 yards at its north end, and that at the southeast corner of the tract, being the south end of the fence, it remained where it was originally. Otherwise the fence which surrounded the tract has not been moved, changed, or molested since its erection, but has been kept in good condition by being repaired from time to time. During all of this time--that is, from 1889 to 1903, or some time thereafter--Mrs. Archibald held actual possession of such lands, having them fenced, leasing them for grazing purposes, and otherwise exercising full and complete ownership and dominion over the same, and during such time the land was generally reputed and considered by those residing in that community to belong to Mrs. Archibald. It is admitted that the appellants and their predecessors in interest paid all the taxes levied thereon during the years 1889 to 1918.

Section 2937, of the Compiled Laws of 1897, which was in force and effect during practically all of this period of time, and which controls because the land is situated within a grant, provided:

“In all cases where any person or persons, their children, heirs or assigns, shall at the passing of this act or at any time after, having had possession for ten years of any lands, tenements or hereditaments which have been granted by the governments of Spain, Mexico or the United States, or by whatsoever authority empowered by said governments to make grants to lands, holding or claiming the same by virtue of a deed or deeds of conveyance, devise, grant or other assurance purporting to convey an estate in fee simple, and no claim by suit in law or equity effectually prosecuted shall have been set up or made to the said lands, tenements or hereditaments, within the aforesaid time of ten years, then and in that case, the person or persons, their children, heirs or assigns, so holding possession as aforesaid, shall be entitled to keep and hold in possession such quantity of lands as shall be specified and described in his, her or their deed of conveyance, devise, grant or other assurance as aforesaid, in preference to all, and against all, and all manner of person or persons whatsoever; and any person or persons, their children or their heirs or assigns, who shall neglect or who have neglected for the said term of ten years, to avail themselves of the benefit of any title, legal or equitable, which he, she or they may have to any lands, tenements or hereditaments, within this territory, by suit of law or equity effectually prosecuted against the person or persons so as aforesaid in possession, shall be forever barred, and the person or persons, their children, heirs or assigns so holding or keeping possession as aforesaid by the term of ten years, shall have a good and indefeasible title in fee simple to such lands, tenements or hereditaments: Provided, that if any person or persons that have been, are, or shall be entitled to commence and prosecute such suit in law or equity, shall have been, be, or shall be, at the time of said right or title first descended, or accrued, come or fallen within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the limits of the United States, and the territories thereof, that then such person or persons, his, her or their children, heirs or assigns shall or may, notwithstanding the ten years be expired, bring his or her legal or equitable action, as he, she or they might have done before the passage of this act, so as such person or persons, or his, her or their children, heirs or assigns, shall within three years next after his, her or their full age, discoverture, coming of sound mind, enlargement out of prison, coming into the United States or the territories thereof, or death, take benefit of and commence such suit, and at no time after the said three years: Provided, also, that in the construction of this saving provision, no cumulative disability shall prevent the bar aforesaid, but shall only apply to that or those disabilities which existed when the right to sue first accrued, and no other: And provided, also, that such suit so commenced shall be a suit prosecuted with effect, and no other.”

This statute was slightly amended by chapter 63, Laws of 1899, § 1, which is now section 3364, Code 1915. The amendment so made, however, refers solely to certain disabilities, and the time within which such suits may be instituted after the removal thereof. Its provisions are not material to this case.

[1] The appellants having shown by this undisputed evidence that their predecessor in title, Cora Archibald, had so continuously and uninterruptedly occupied and exercised full and complete possession, dominion, and manifestation of ownership, under color of title, for more than the...