Landskroner v. McClure

• Decision Date: 30 November 1988
• Docket Number: No. 17406,17406
• Citation: 765 P.2d 189,107 N.M. 773,1988 NMSC 91
• Parties: Janice L. LANDSKRONER, a/k/a Jan L. Reiss, and Stanley J. Reiss, Plaintiffs- Appellants, v. Rex D. McCLURE and Mary Bernice McClure, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 189

765 P.2d 189

107 N.M. 773

Janice L. LANDSKRONER, a/k/a Jan L. Reiss, and Stanley J Reiss, Plaintiffs- Appellants, v. Rex D. McCLURE and Mary Bernice McClure, Defendants-Appellees.

No. 17406.

Supreme Court of New Mexico.

Nov. 30, 1988.

Rehearing Denied Dec. 21, 1988.

[107 N.M. 774] Hinkle, Cox, Eaton, Coffield & Hensley, Mark C. Dow, Albuquerque, for plaintiffs-appellants.

Ruud, Wells & Mande, Russell W. Ruud, Deborah H. Mande, Albuquerque, for defendants-appellees.

OPINION

RANSOM, Justice.

Janice Landskroner and Stanley Reiss, formerly a married couple, brought suit against their cotenant, Rex McClure, for breach of contract and fiduciary duties, for fraud and slander of title, and to quiet title to real property. The trial court found in favor of McClure on all claims and plaintiffs appeal. We affirm in part and reverse in part.

The court's findings of fact may be summarized as follows: In 1963, at public auction, two couples purchased adjacent lots. Plaintiffs purchased lot 15 and McClures purchased lot 17. Thereafter, the four individuals agreed to combine the lots into a common tenancy with each person owning an undivided one-fourth interest. A tenancy-in-common agreement was executed in 1964. At the time of execution, the parties assumed the agreement would be recorded by the attorney who prepared it. While reviewing county tax records in March of 1985, however, McClure discovered the agreement had not been recorded, and he recorded it at that time.

Subsequent to the execution of the agreement, each couple was divorced. In their property settlement, McClure received his wife's undivided one-fourth interest. The Reiss divorce did not disturb the property interests of plaintiffs and each continued to own an undivided one-fourth interest in lots 15 and 17 as tenants in common with McClure.

Until the fall of 1980, the parties had no contact with each other. However, during 1980 and 1981 McClure and Landskroner communicated considerably regarding the possible sale of lot 17. McClure offered Landskroner $4,000 for plaintiffs' interests in lot 17, provided she could produce a quitclaim deed from Reiss. Landskroner was unable to obtain the deed from Reiss, nor could she agree on a selling price with McClure.

In October of 1981, McClure undertook to sell his interest in lot 17 to James Winchell for $4,000. Although the warranty deed prepared by the title company did not specifically limit the grant to McClure's undivided one-half interest, he signed the deed without realizing the conveyance was not specifically so limited. The title company insured the title to lot 17.

In 1981, plaintiffs were informed by Winchell that he had purchased lot 17 from McClure. In November of 1985, assuming that the tenancy-in-common agreement with McClure was ineffective after his conveyance of lot 17, Landskroner attempted to sell a one-half interest in lot 15 for $18,000. During this time she discovered the tenancy-in-common agreement had been recorded in March by McClure, indicating to her that McClure continued to claim an interest in lot 15. This suit ensued.

The following issues are presented for review¹: (1) whether the unilateral conveyance of a portion of an estate by one cotenant, without the consent, authority or knowledge of the other cotenants, served to partition the entire estate and terminate any cotenancy agreement; (2) whether such conveyance constituted a breach of any cotenancy agreement; (3) whether the district court abused its discretion by ordering an accounting of the proceeds of the conveyance; (4) whether the district court abused its discretion by failing to award attorney fees to plaintiffs; and (5) whether substantial evidence supported certain findings of fact.

Partition. Plaintiffs complain about the court's failure to quiet title in them to lot 15 and to exclude McClure from any ownership interest. Plaintiffs theorize that McClure's conveyance of lot 17, coupled with their acquiescence to and ratification of the sale, effected a partition of the common estate, leaving plaintiffs in sole ownership of the remaining lot. We disagree.

We note first that plaintiffs requested a finding that they had ratified the conveyance of lot 17 to Winchell. However, the trial court refused to incorporate this request in its findings. Failure of the court to find as requested is treated as a finding against the party asserting the affirmative. Gallegos v. Wilkerson, 79 N.M. 549, 445 P.2d 970 (1968). In this case, failure of the court to find as requested was appropriate.

"Ratification" is the adoption or confirmation of an unauthorized act; its effect is the acceptance of the benefits and burdens of that act. Ulibarri Landscaping Material, Inc. v. Colony Materials, Inc., 97 N.M. 266, 639 P.2d 75 (Ct.App.1981), cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982). There can be, of course, no ratification of an act which did not occur, nor acceptance of benefits and burdens which did not accrue. Reiss testified that, after being informed by Winchell of the sale of lot 17, he assumed McClure had reneged on their agreement. Consequently, Reiss was willing to assume ownership of lot 15 as a quid pro quo. Landskroner also testified that she assumed the cotenancy agreement was no longer in effect when in 1985 she attempted to convey an individual one-half interest in lot 17. However, there was also evidence that McClure never intended to transfer full title to lot 17, and that Winchell had notice of the cotenancy agreement. McClure's intent and Winchell's knowledge of the cotenancy agreement are material to a determination of the extent of the interest conveyed by McClure in lot 17. Even if Reiss and Landskroner ratified the conveyance, just what they ratified depends on the extent of the interest conveyed. Under these circumstances, the trial court did not abuse its discretion in refusing to rule that lots 15 and 17 had been partitioned by virtue of assumptions made by Reiss and Landskroner.

The conveyance of an interest in lot 17 did not automatically effect a partition of the cotenancy, irrespective of the extent of the interest conveyed. Generally, a tenant in common may convey his or her own interest in the common estate to a stranger without the knowledge or approval of other cotenants. A. Powell and P. Rohan, 4A Powell on Real Property p 602 (1982). However, a cotenant may not convey, alienate, or encumber the interest of another cotenant unless he is clearly and properly authorized to do so. Texas Am. Bank/Levelland v. Morgan, 105 N.M. 416, 733 P.2d 864 (1987); Lewis v. Lewis, 106 N.M. 105, 739 P.2d 974 (Ct.App.1987); Jolly v. Kent Realty, Inc., 151 Ariz. 506, 729 P.2d 310 (Ct.App.1986); Beckstrom v. Beckstrom, 578 P.2d 520 (Utah 1978).

As an aspect of this general principle, it is usually said that a cotenant cannot convey an individual interest in a specific parcel of the tract held in common, nor an undivided interest in a specified parcel. The reason, the treatises teach, "is obvious * * *. [S]ince a grantor himself has no right, on partition, to select any particular portion of the land and to insist that his moitey or interest, or any part of it, be set off in that specific portion, so he cannot convey such a right to his grantee." 20 Am.Jur.2d Cotenancy and Joint Ownership Sec. 98, at 198 (1965); 7 R.C.L. Cotenancy Sec. 75, at 880 (1915); see also 2 Am.Law of Property Sec. 6.10 at 46-48 (1952); G. Thompson, 4 Thompson on Real Property Sec. 1817 (1979 Repl.).

Under some circumstances, however, a conveyance of an interest in a specific portion of the common estate will be given effect. For example, some cases hold that where the common property consists of several entirely distinct and separate parcels, a cotenant may convey his undivided interest in such a parcel to a stranger, so long as this does not substantially prejudice the partition rights of his cotenants. 2 Am.Law of Property Sec. 6.10, at 48 (1952). Similarly, a court of equity will give effect to the conveyance of an interest in a distinct and specific portion of the common property in a subsequent suit to partition if this can be done without prejudicing the rights of the nonconsenting cotenants. Peabody Coal Co. v. Rutter, 283 S.W.2d 842 (Ky.Ct.App.1955); Lake v. Reid, 252 S.W.2d 978 (Tex.Ct.App.1952); Robinson v. O'Connor, 181 S.W.2d 935 (Tex.Ct.App.1944). Nevertheless, such a conveyance does not affect the title or rights of nonconsenting cotenants in the portion set aside, and is voidable if it prejudices their rights. Elmore v. Elmore, 99 So.2d 265 (Fla.1957); Thompson v. Gaudette, 148 Me. 288, 92 A.2d 342 (1952); 20 Am.Jur.2d Cotenancy and Joint Ownership Sec. 98, at 198-99 (1965).

In keeping with these principles, New Mexico law recognizes that under certain circumstances a conveyance which purports to grant complete ownership of a specific tract within the common estate may operate to transfer only the vendor's undivided interest in that portion of the estate. Madrid v. Borrego, 54 N.M. 276, 221 P.2d 1058 (1950); see also Plante v. Conklin Limestone Co., 89 R.I. 64, 151 A.2d 116 (1959) (conveyance of a specific portion of commonly owned property was subject to the undivided one-third interests...