Keirsey v. Hirsch
| Decision Date | 02 December 1953 |
| Docket Number | No. 5545,5545 |
| Citation | 43 A.L.R.2d 929,1953 NMSC 112,265 P.2d 346,58 N.M. 18 |
| Parties | , 43 A.L.R.2d 929 KEIRSEY v. HIRSCH et al. |
| Court | New Mexico Supreme Court |
C. C. Davidson, Tucumcari, Manford Rainwater, Tucumcari, Gilbert, White & Gilbert, Santa Fe, for appellants Skinner and Clavel.
C. E. McGinnis, Springer, John B. Wright, Raton, for appellant Hirsch.
Adolf J. Krehbiel, Clayton, Robert A. Morrow, Raton, for appellee.
Plaintiff below, C. L. Keirsey, appellee, brought suit seeking specific performance of an alleged contract to purchase from the defendant and appellant, Viola R. Hirsch, 600 acres of land located in Harding County, New Mexico. Also parties defendant to the original suit and appellants in this Court are J. T. Skinner and Bernice Clavel, administratrix, to whom the defendant, Viola R. Hirsch, deeded the property involved subsequent to her alleged contract with the plaintiff Keirsey. In addition to specific performance, the plaintiff prays for the cancellation of the deeds from the defendant Hirsch to the defendants Skinner and Clavel, and further seeks an abatement of the purchase price based upon seller's failure to convey mineral rights under one 160-acre tract, together with damages for the loss of the use of the premises.
Defendant Hirsch, the seller, defendant upon two grounds: (1) That the alleged contract of sale to Keirsey included only property actually owned by the defendant Hirsch, i. e., did not include minerals reserved in Government Patent. (2) That the plaintiff Keirsey offered to buy surface and mineral rights, while the defendant Hirsch agreed to sell only surface and such minerals as she might have; that there was no meeting of the minds and, therefore, no contract.
The defendants Skinner and Clavel defend on the grounds: (1) That there was no contract. (2) That, if there were a contract, it was unenforceable by reason of the statute of frauds. (3) That the court was without jurisdiction by reason of the lack of indispensable parties, namely, the heirs of the original plaintiffs, C. L. Keirsey, who died during the lawsuit. The action was revived in the name of his administratrix and the suit prosecuted to this point by her.
The trial court in its decree held that there was a valid contract between the plaintiff Keirsey and the defendant Hirsch; that plaintiff, the administratrix of the estate of C. L. Keirsey, deceased, was entitled to a diminution of the agreed purchase price in the amount of $80 for the missing mineral interest and in the amount of $1,950 damages for loss of possession; that the Citizens State Bank, a nominal party defendant, deliver to plaintiff a warranty deed, the original warranty deed from defendant Hirsch to C. L. Keirsey; that the deeds from Hirsch to Skinner and Clavel be cancelled; and that Skinner and Clavel turn possession of the lands over to the plaintiff administratrix, all conditioned, of course, upon the payment by plaintiff of the balance of the agreed purchase price.
The first question for determination is whether or not there was a binding contract between C. L. Keirsey, the original plaintiff, and the defendant, Viola R. Hirsch. In this regard, the trial court found as a fact:
The problem here is whether or not there was any substantial evidence which would justify the trial court in making this finding. In our judgment there was such evidence in the following exhibits introduced at trial; these exhibits were admitted in evidence without objection by any of the parties except for the first letter quoted, and there was no error assigned by reason of the rule of the court on that exhibit. For a better understanding of these exhibits, the identity of the persons named is as follows: C. L. Keirsey is original plaintiff and purchaser; Viola Hirsch is defendant and seller; Milton H. Floersheim is a real estate agent who, on behalf of Viola Hirsch, looked for and found a purchaser; Shifrin is attorney for Viola Hirsch, the seller.
'Roy, New Mexico
October 2, 1944
'Mr. Milton H. Floersheim
Floersheim Mercantile Company
Roy, New Mexico
'Dear Mickey:
'In regard to the conversation of last Saturday afternnon, I wish to submit an offer of Forty-eight hundred dollars ($4,800.00) for the Hurst Place.
Roy, New Mexico.
'Gentlemen:
'At the suggestion of Mr. Milton Floersheim enclosed find Warranty Deed executed by Mrs. Viola Hirsch conveying property which she owns in New Mexico containing 600 acres, which Deed is sent to you with the distinct understanding that it is to be delivered only upon the receipt from Mr. C. L. Keirsey of the sum of $4800.00.
'Mr. Floersheim informs us that upon receipt by you of the enclosed Deed Mr. Keirsey will immmediately deposit $500.00 as earnest money and that as soon as his attorney approves the Abstract of Title he will pay you the difference, to-wit: $4300.00 at which time you have our authority to deliver the Deed to him, or his representatives.
'We understand that there will be a charge of $2.00 by your Bank for the handling of these papers and it is agreeable to us that it be deducted from the $4800.00, which we shall expect to be mailed to us shortly after it is received by you. As we understand from Mr. Floersheim he will pay the cost of bringing up to date the Abstract and he will also pay the 1944 taxes up to the date of closing this deal, both of which items he will repay to himself out of the rent of $300.00 which he is to receive from Mr. Sandoval.
'We are sending this letter by registered mail and would appreciate your acknowledging receipt of same so that we shall know that the conditions contained in this letter have been accepted by you.
Registered: Return Receipt Requested.'
(Postal Card containing the following):
'This Side of Card is for Address (U. S. 1cents Postage Stamp)
Taylor, Mayer, Shifrin & Willer
1245 Telephone Building
St. Louis, (1) Missouri'
(On the other side, the following information):
'Copy (in pencil notation)
Roy, New Mexico November 16, 1944
'Gentlemen:
'Your letter dated Nov. 10th, with Warranty Deed enclosed, has been received. Mr. Keirsey and Mr. Floersheim have been notified.
'Your instructions will be followed
(In pencil, the following):
'Yours very truly,
L. E.--D.--Mgr.
Roy Agency.'
Drawer C.
Roy, Harding County, New Mexico
'Dear Sir:
'Mrs. Hirsch was in and left the New Warranty Deed which you sent to us properly signed and acknowledged. We, therefore, are returning it to you, together with abstract of Title No. 15 containing 48 pages and compiled and certified by the Harding County Abstract Company, Mosquero, New Mexico, covering the following described property:
"Lot one and the northeast quarter of the northwest quarter of Section eighteen in Township twenty-one North of Range twenty-nine--and the east half of the northeast quarter of Section thirteen in Township twenty-one North of Range twenty-eight East, N.M.P.M.'
'This Abstract and Warranty Deed is being sent to you to complete the transaction under the terms and conditions of our last letter to you wherein we went a Warranty Deed also executed by Mrs. Hirsch. Kindly acknowledge receipt of same and oblige.
It is to be noted that the warranty deed mentioned in the foregoing letter was executed by defendant Hirsch before a notary public, correctly described the property involved, named C. L. Keirsey as grantee, and recited the exact consideration of $4,800.
The foregoing correspondence, together with the deposit by the original plaintiff, C. L. Keirsey, of $500 earnest money with the bank, coupled with the delivery of warranty deed and abstracts to Keirsey's attorney for examination, are, in the opinion of this Court, more than sufficient to sustain the finding of the trial court to the effect that a binding contract was consummated between C. L. Keirsey and Viola R. Hirsch.
We find no merit in the contention of the defendant Hirsch to the effect that there was no meeting of the minds since she was not in reality the owner of the minerals under 160 acres. It is well settled that a contract by seller to furnish warranty deed and abstract of title carries an implied agreement that the title shall be marketable. See Hugh K. Gale Post No. 2182, V. of F. W., of...
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