Laura v. Christian

Decision Date16 July 1975
Docket NumberNo. 9874,9874
Citation88 N.M. 127,1975 NMSC 37,537 P.2d 1389
PartiesRobert M. LAURA, Plaintiff-Appellee, v. Ray E. CHRISTIAN et al., Defendants-Appellants.
CourtNew Mexico Supreme Court
OPINION

OMAN, Justice.

This appeal is from a judgment quieting title in plaintiff-appellee (Laura) to a parcel of real property known as Fireside Lodge. We reverse as to appellant (Christian) and remand with directions.

There were several defendants, including Christian, named in the proceedings below, but only he has taken and perfected an appeal pursuant to Supreme Court Rules 5, 7, 10, 12, 14 and 15 (§§ 21--2--1(5), (7), (10), (12), (14) and (15), N.M.S.A. 1953 (Repl.Vol. 4, 1970)), which were applicable to this appeal but which have since been superseded. The other defendants are presumed to have been satisfied with the judgment of the district court. Chavez v. Myers, 11 N.M. 333, 68 P. 917 (1902). In any event, they have failed to perfect an appeal, and, therefore, are bound by the judgment.

Christian claims only a one-fourth interest as a tenant in common with Laura in the Fireside Lodge. Thus, this appeal and our decision relate only to this claim and to the admitted right of Laura as a cotenant to a lien upon Christian's interest to secure the payment by him of his proportionate share of all sums expended by Laura to protect and preserve their common property.

The property was subject to a mortgage lien at the times Laura and Christian acquired their respective interests. Thereafter, one payment on the principal and several payments of interest were made on the mortgage indebtedness which were contributed to by the cotenants. However, the subsequent payments as called for by the mortgage instruments were not paid, and the mortgagee instituted a foreclosure action on August 31, 1971. This suit proceeded to judgment in favor of the mortgagee, and a foreclosure sale was ordered for April 11, 1972. On April 10, 1972, Laura, in order to protect the property from sale, paid the mortgagee the sum of $17,288.40, which represented the amount of the judgment, interest and expenses owing to the mortgagee.

Although Christian and other claimants to an interest in the property had knowledge as early as July, 1971, that foreclosure was being threatened, they failed to assume their respective obligations to pay their proportionate shares of the mortgage indebtedness as it became due, and failed to take any action to avoid the sale of the property. It was not until after it became apparent that the value of the property had been greatly enhanced by the execution on March 29, 1972 of what in effect amounted to an option to purchase adjoining lands and which was exercised by the optionee on July 19, 1972, that Christian demonstrated any real interest in the property and any willingness to pay any share of the indebtedness which was discharged by Laura on April 10, 1972.

However, the fact remains that Christian had and still has legal title to a one-fourth interest in the property, and on January 9, 1973, at the commencement of the trial in the cause now on appeal, agreed to the payment of his proportionate share of the expenditures made by Laura to protect the property and to the imposition by the district court of a lien upon his interest to secure payment thereof. The general rule as to reimbursement, or contribution, from a cotenant in a situation such as is here presented is as follows:

'As a general proposition, a cotenant who pays more than his share of a debt secured by a mortgage or other lien on the common property, or of interest falling due on such debt, is entitled to reimbursement (contribution) from his cotenants to the extent to which he paid their shares of the indebtedness.' Annot., 48 A.L.R.2d 1295, 1308 (1956).

See also Kaye v. Cooper Grocery Company, 63 N.M. 36, 43, 312 P.2d 798, 802 (1957); Gurule v. DeChacon, 61 N.M. 488, 303 P.2d 696 (1956); Chavez v. Chavez, 56 N.M. 393, 244 P.2d 781, 30 A.L.R.2d 1236 (1952); Smith v. Borradaile et al., 30 N.M. 62, 227 P. 602 (1924).

It is also a general rule that the redemption or prevention from loss by one cotenant of common property by payment of an obligation or the purchase of an outstanding interest, which should be discharged or purchased proportionately by cotenants, inures to the benefit of the cotenants at their option, subject to the right of contribution. However, the option must be exercised within a reasonable time, and what is reasonable...

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9 cases
  • Cooper v. Cooper
    • United States
    • Vermont Supreme Court
    • September 21, 2001
    ...the mortgage on behalf of the co-tenants, and that they are entitled to contribution from Brian and Karen. See Laura v. Christian, 88 N.M. 127, 537 P.2d 1389, 1391 (1975) (where one co-tenant is found to have acted on behalf of the remaining co-tenants, those co-tenants must contribute to t......
  • Berger v. Dixon & Snow, P.C.
    • United States
    • Colorado Court of Appeals
    • September 9, 1993
    ...may be ordered without a finding of fault or misconduct. 1 D. Dobbs, Law of Remedies § 4.1(2) (2d ed. 1993). See Laura v. Christian, 88 N.M. 127, 537 P.2d 1389 (1975) (co-tenant's right to contribution towards payment of lien not dependent upon any breach of tort or contract Additionally, w......
  • Whirrett v. Mott
    • United States
    • Ohio Court of Appeals
    • September 13, 1991
    ...441 A.2d 556; Lasseter v. Blalock, (Fla.App.1962), 139 So.2d 726; Jones v. Jones (1958), 236 La. 52, 106 So.2d 713; Laura v. Christian (1975), 88 N.M. 127, 537 P.2d 1389; Jenkins v. Jenkins (1971), 211 Va. 797, 180 S.E.2d 516; Walters v. Walters (1970), 1 Wash.App. 849, 466 P.2d Accordingly......
  • Deloris M. Whirrett v. Helen Mott
    • United States
    • Ohio Court of Appeals
    • September 1, 1991
    ... ... Blalock, (Fla. App. 1962), 139 So. 2d 726; ... Jones V. Jones (1958), 236 La. 52, 106 So ... 2d 713; Laura v. Christian (1975), 88 N.M ... 127, 537 p. 2d 1389; Jenkins v. Jenkins ... (1971), 211 Va. 797, 180 S.E. 2d 516; Walters v ... ...
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