Huneke v. Dold.

• Decision Date: 03 January 1893
• Citation: 32 P. 45,7 N.M. 5
• Parties: HUNEKEv.DOLD.
• Court: New Mexico Supreme Court

7 N.M. 5

32 P. 45

HUNEKE

v.DOLD.

Supreme Court of the Territory of New Mexico.

Jan. 3, 1893.

Appeal from district court, San Miguel county; James O'Brien, Judge.

Action by Henry Huneke against Mary Dold to subject certain land to the payment of a judgment against the administrator of defendant's ancestors. From an order granting a motion to quash the process, and service thereof, and dismiss the proceedings, plaintiff appeals. Modified.

The other facts fully appear in the following statement by LEE, J.:

This is a suit in equity brought by a judgment creditor of decedents' administrator against one of their heirs, a nonresident of the territory, to subject the real estate in the territory, which such heir inherited from the decedents, to the payment of their (decedents') debt. The bill of complaint, which is sworn to, is in the nature of a creditor's bill. It recites that decedents, at the time of their death, were indebted to complainant; that in December, 1884, an administrator was appointed by the probate court of San Miguel county; that said administrator failed to pay complainant's claim, and he instituted suit against him in the district court of San Miguel county, at the March term, 1887, and recovered judgment for the amount of said claim, with interest and costs; that the said administrator then promised to pay the said judgment, but failed to do so, and in November, 1887, resigned his trust as administrator, and an administrator de bonis non was appointed by the probate court to succeed him; that in April, 1890, the said judgment still remaining unpaid, complainant, by proceedings of scire facias in the district court of San Miguel county, revived the same against the administrator de bonis non, and judgment was then and there rendered against the said administrator de bonis non, by default, for the amount of said judgment; that on April 26, 1890, complainant sued out an execution on his said judgment, and placed the same in the hands of the sheriff of San Miguel county, which, after being duly served as required by law, was returned nulla bona; and that the personal estate of decedents is wholly exhausted, leaving said judgment still in force, and wholly unpaid. The bill of complaint further recites that decedents, at the time of their death, were lawfully seised, in fee simple, of certain specific real estate in the county of San Miguel and territory of New Mexico, and gives a full and complete description of the same; that all of said real estate, since the death of decedents, became, by descent, the property of their three sole heirs,-one of them the defendant to this bill; that prior to the bringing of the present action the separate interests of the other two heirs in all of said real estate had passed by involuntary alienation into the hands of innocent purchasers, and beyond the reach of decedents' creditors; and that the interest of the defendant, which is an undivided one-third part of all said real estate, is now all that remains in the hands of said heirs, or any or either of them, to be subjected to the payment of complainant's judgment. The bill of complaint further recites that one specific piece of real estate, which is also fully described, was by one of the decedents, prior to his death, sold and disposed of, and a mortgage upon it taken back for a large part of the purchase money; and that after his death, the mortgage debt still remaining due and unpaid, it was agreed between such grantee and mortgagor in said mortgage, and the administrator, to take a conveyance of said real estate in satisfaction of the mortgage debt, and that the said administrator, in pursuance of such agreement, and contrary to law, authorized and directed such reconveyance to be made to and in favor of the defendant; and that such real estate thereby became, and is claimed by defendant to be, her sole and separate property, and she refuses to allow the same to be applied to the payment of complainant's judgment. The bill of complaint also recites that a lis pendens was duly filed in the probate court of San Miguel county, as required by law, against all of said real estate. Then follows the prayer of the bill, for an accounting of the amount due complainant under said judgment; the establishment of a lien against all real estate descended to defendant, and particularly against that portion fraudulently conveyed to her in satisfaction of the mortgage debt due decedents' administrator, to the full amount found due upon such accounting; and that defendant be decreed to pay the full amount so ascertained, and, upon her failing to do so, her interest in all the lands and premises so descended, or so much thereof as may be necessary, be sold under a decree of the court for the satisfaction of the same. An affidavit showing defendant to be a nonresident of the territory was filed with the bill of complaint, and upon this the clerk published the usual notice to the defendant of the pendency of said cause, and service upon defendant was thereupon obtained by publication. At the term of court to which said process was made returnable, defendant appeared by her solicitors, but whether generally or specially the record does not clearly disclose, and moved to quash the process and service of process, and dismiss the proceeding, for the reason that the court had no jurisdiction of the defendant or subject-matter; that the complainant had no lien upon the real estate of the defendant; that the cause of action set up in said bill was a personal one, and no personal service of process had been made on defendant; and that a court of equity had no jurisdiction to grant the relief prayed for in the bill of complaint. This motion, after argument, was sustained by the court, and the proceeding dismissed, and an order entered to that effect. Complainant thereupon appealed from such order, and it is that which this court is now asked to review.

Where, in an action by a judgment creditor of an administrator, in the nature of a creditors' bill, plaintiff seeks to subject to the payment of his judgment land, the legal title to which was in a third person at the time of intestate's death, and which the administrator fraudulently caused to be conveyed to defendant, such third person and the administrator are necessary parties.

J. D. W. Veeder, for appellant.

A. A. Jones, for appellee.

LEE, J., (after stating the facts.)

This court has held that the equity jurisdiction conferred upon it by the general government is the same as the high court of chancery of England possesses, and is subject to neither limitation nor restraint by state legislation. “The court is bound to exercise the jurisdiction, if the bill, according to the received principles of equity, states a case for equity relief. The absence of a complete and adequate remedy at law is the only test of equity jurisdiction.” Garcia y Perea v. Barela, (N. M.) 27 Pac. Rep. 507. The power applicable to this case has been defined by the supreme court of the United States to be as follows: ...