LOTSPEICH v. DEAN
| Decision Date | 21 November 1949 |
| Docket Number | No. 5185,5185 |
| Citation | 53 N.M. 488,211 P.2d 979 |
| Parties | LOTSPEICH et al. v. DEAN et al. |
| Court | New Mexico Supreme Court |
Donald Brown, Roswell, for appellants.
Hanners & Ward, Lovington, for appellees W. Robert Dean and Mabel Dean, his wife.
This is a statutory action to quiet title to certain real property; for accounting, and for partition of interests. The ten year statute of limitations, laches, and other defenses are pleaded. Upon the facts admitted the case was tried and summary judgment dismissing plaintiff's complaint was entered.
The facts are not in dispute and are in substance as follows:
Dudley Lotspeich, by last will and testament, devised to his widow, Margaret Lotspeich, a life estate in 160 acres of land located in Lea County, New Mexico, with the remainder to his children, Everitte D. Lotspeich, Geraldine Lotspeich Newman, Marvin Lotspeich, and his step-children, Johnie Golden and Bert Golden, in equal shares. Marvin Lotspeich was never married and died intestate without issue subsequent to the death of the testator. The appellants were his only heirs at law, and inherited his remainder interest in the 160 acres of land.
On May 8, 1933, Margaret Lotspeich, by deed with general warranty covenants, purportedly conveyed the premises in fee to appellee, W. Robert Dean. At the same time she delivered to him a quitclaim deed bearing date April 28, 1933, purportedly signed by appellants, Everitte Lotspeich and Geraldine Lotspeich Newman, and purportedly conveying their remainder interests in the premises to the said Margaret Lotspeich, but such signatures were forged, and the instrument was not the deed of appellants.
Appellees Dean entered into immediate possession of the premises in 1933, under Mrs. Lotspeich's warranty deed, and at all times since have been in open, notorious, actual, visible, exclusive and uninterrupted possession; and have paid all taxes thereon continuously as they became due.
Appellant Mrs. Newman wrote defendant W. Robert Dean a letter from Dilly,Texas, on May 17, 1936, that she had never signed 'any papers' on the 160 acres of land in suit. Dean wrote to Mrs. Newman on October 26, 1936, stating that he would 'be glad to know what she had learned' about the deeds given to him which had been filed of record. Mrs. Newman answered on October 30, 1936, stating that all she knew was that 'any deeds or papers with my husband's, brother's, or my name on them are forged.' Appellant Everitte Lotspeich wrote appellee W. Robert Dean on May 20, 1936, 'I know nothing of the deed I was supposed to have executed on the 160 acres of land.' He asked for its date, the particulars of its recording, and the name of the notary who, it appeared, had taken his sister's and her husband's acknowledgements; and agreed when received he would investigate the matter. But the record is silent as to whether the matter was further pursued.
This correspondence establishes only the fact that the quitclaim deed in question was a forgery as to appellants' names appearing thereon as grantors, and that the appellants and appellees Dean knew in 1936 that it was a forgery.
Prior to this correspondence the appellees Dean believed they had a fee simple title to the property by virtue of the warranty deed from Mrs. Lotspeich purporting to convey to them such title.
This suit was filed in 1947, after appellees Dean had been in possession of the property fourteen years, and eleven years after the appellants and appellees Dean had knowledge that the quitclaim deed was a forgery.
The Lotspeich will was duly admitted to probate in the county court of Palo Pinto County, Texas, on February 17, 1925 in Cause No. 1469 entitled In the Matter of Estate of Dudley Lotspeich, Deceased, and that a certified copy of all the probate proceedings thereon was recorded on May 8, 1933 at 3:00 p. m. in Book 10 of Misc. Records at page 335 in the office of the County Clerk of Lea County, New Mexico.
So far as the record shows the life tenant under the will is living.
The appellants requested appellees Dean to admit certain facts; among which was the following: 'That the purported signatures of 'Geraldine Newman' and 'Everett Lotspeich' which appeared on the original of a purported quitclaim deed dated April 28, 1933 and recorded on May 8, 1933, at 3:00 P.M. in Book 2 of Deed Records at page 511 in the office of the Lea County Clerk, were not the signatures of the plaintiffs, Everitte D. Lotspeich and Geraldine Lotspeich Newman, and were in truth and in fact, forgeries.'
The appellees refused to admit the truth of this statement, thus making an issue offact as to whether the quitclaim deed involved here was a forgery.
The trial court entered its summary judgment, in which it is stated:
'And the Court, having considered the argument of counsel, and being fully informed and advised in the premises, finds that the complaint, answer of Dean defendants, requests for admission of facts and the replies thereto and the supporting affidavit attached to said motion show that there is no genuine issue as to any material fact, and the Court is of the opinion that the motion for summary judgment is well taken as to all three grounds thereof, and that the defendants are entitled to a judgment as a matter of law.
'It Is Therefore Ordered that the motion for summary judgment be and the same hereby is sustained as to all three grounds thereof, and as to all defendants.
'It Is Further Ordered, Adjudged And Decreed that the plaintiffs' complaint, and all causes of action thereunder, be and the same hereby is dismissed with prejudice.'
The court was of the opinion that the issue made regarding whether the quitclaim deed was a forgery was not a 'genuine issue as to a material fact.' In other words, it held that it was not a material fact whether the deed was or was not a forgery. In either case appellees were entitled to a summary judgment.
We must and do assume for the purposes of this appeal that the quitclaim deed is a forgery; and have so stated the facts. If so treating it, we should conclude that appellants should recover, the case must be reversed.
The trial court concluded that appellees' motion for summary judgment should be sustained upon each of the three grounds asserted; that is, (1) the appellants' claim was barred by the ten year statute of limitations; (2) that it was barred by the four year statute of limitations which has application to actions for relief on the ground of fraud; (3) that appellants are barred from affirmative relief by their laches.
The Deans were in possession of the land in suit for more than ten years, under a deed which purported to convey to them the land in fee, and paid all taxes as they became due. If, therefore, their possession was adverse to the appellants the ten year statute of limitations has barred appellants' right to recover in this action.
We are of the opinion, however, that the Dean possession was not adverse, and that the trial court erred in sustaining the appellees' motion for a summary judgment, in that the appellants' claim was not barred by either the ten year (Sec. 27-121, N.M.Sts. 1941) or four year (Sec. 27-104, N.M.Sts. 1941) statute of limitations, or by their laches; assuming as the trial court did that the quitclaim deed was a forgery. If this deedhad been genuine, limitations and laches would not be involved. We will now state our reasons for this conclusion:
It is a general rule, to which there are exceptions, that until the remainderman is entitled to the possession of the premises by the death of the original life tenant the possession of the life tenant or his grantee holding under a deed purporting to convey the fee, is not adverse; and statutes of limitation do not start to run against him until the death of the life tenant. Content v. Dalton, 122 N.J.Eq. 425, 194 A. 286, 112 A.L.R. 1031; Superior Oil Corp. v. Alcorn, 242 Ky. 814, 47 S.W.2d 973; 31 C.J.S., Estates, § 66; 33 A. J. 'Estates' Sec. 187.
'In actions to recover possession of land or to establish title to interests therein brought by the owner of a legal estate which is or at one time was a future interest, the statutory period does not commence to run before such estate becomes a present interest unless
'(a) the future interest was created by the owner of an interest against whom the statutory period had already commenced to run (see Sec. 226); or
'(b) the future interest is or was barrable by disentailing or similar conveyance (see Sec. 227); or
'(c) The landlord and tenant relationship is involved between the parties.' Restatement of Law of Property, Sec. 222.
Illustrations under this section are as follows:
'* * * f. In cases within the rule stated in this section, since the owner of the present estate is entitled to possession and the owner of the future estate is not, no adverse possession by the former against the latter is possible, until the future interest becomes a present interest. It is immaterial that the present owner claims a larger interest under color of title, or informs the future owner that he claims an estate in fee simple absolute, or does both. The statutory period commences to run against the owner of the future estate as soon as such estate becomes a present interest, whether this occurs by expiration of the preceding estate by its own limitation or by the happening of some event causing the future estate to take effect as an executory interest.
* * *
'5. A, owning Blackacre in fee simple absolute, transfers Blackacre 'to B for life, remainder to C and his heirs.' B purports to transfer an estate in fee simple absolute in Blackacre to D. D believes in good faith, but erroneously, that he has an estate in fee simple absolute in Blackacre and so informs C. B dies. In an action by C against D to recover possession of Blackacre the statutory period is computed from the date of B's death.'
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