Lusk v. First Nat. Bank of Carrizozo

• Decision Date: 23 September 1942
• Docket Number: No. 4683.,4683.
• Citation: 46 N.M. 445,130 P.2d 1032
• Parties: LUSKv.FIRST NAT. BANK OF CARRIZOZO et al.
• Court: New Mexico Supreme Court

46 N.M. 445

130 P.2d 1032

LUSK

v.FIRST NAT. BANK OF CARRIZOZO et al.

No. 4683.

Supreme Court of New Mexico.

Sept. 23, 1942.Rehearing Denied Dec. 2, 1942.

Appeal from District Court, Lincoln County; Numa C. Frenger, Judge.

Suit by Belle Lusk against First National Bank of Carrizozo to have cancelled a certain grazing lease between State Land Commissioner and contestee, wherein Barney W. Wilson intervened. From an adverse judgment, the contestant appeals.

Affirmed.

Under Supreme Court rule, a trial judge must make and file his decision consisting of findings of such ultimate facts and conclusions of law stated separately as are necessary to support his judgment, in a single document, and he must sign and file such decision in the cause as a part of the record proper.

Harold Hurd, of Roswell, for appellant.

John E. Hall, of Carrizozo, for appellees.

MABRY, Justice.

Belle Lusk as contestant (appellant here) filed in the state land office at Santa Fe her petition to contest and have cancelled a certain grazing lease covering Sec. 16, Township 4, S. of Range 13, E., N.M.P.M., State Lands, naming the First National Bank of Carrizozo as contestee. Contestant sought a cancellation of the lease between the state land Commissioner and appellee upon the ground that appellee, as such lessee, had violated the terms of its lease by subleasing to one Barney W. Wilson, who in turn, it was alleged, had subleased to one Jim Hall.

Appellee bank, contestee, answered denying that the land covered by the lease in question had ever been sublet, but claimed that the lease, which had been originally executed in 1924, and renewed at the end of five-year periods, and still held in the name of appellee bank was to be assigned and released to the said Wilson; that the said Wilson had contracted to purchase certain lands from appellee and that he had the use of said section 16, the land in question, which adjoins lands of Wilson for which he was paying only the rental required by the state land office under the lease to appellee, and that he had the promise of appellee that assignment thereof would be made by it to the said Wilson when all indebtedness due upon other accounts had been paid and satisfied; that there never had been and was not then any kind of leasing of the section in question.

At the same time the said Barney W. Wilson, under an order permitting, intervened in said cause joining with the said bank in its defense of the lease. The petitioner in intervention denied that he had ever subleased from the bank the land in question or that he had ever contracted with the said Jim Hall or any other person regarding subleasing the land himself; both appellee, First National Bank and Barney W. Wilson, intervener, took the position that the bank, through a deal in which it sold some of its own lands to the said Wilson, but which were not yet paid for, would, when such lands were paid for release and assign over to the said Wilson all of its right, title and interest in and to the lease in question covering section 16; that while the bank held legal title to the lease, the beneficial title was in Wilson, who had the use thereof pending final payment by him to the bank upon the obligation owing it, and who would, when full payment by him should be made, receive an assignment of the lease and a release of claim by the bank, which the law permits.

The contest was heard by the Commissioner and the lease in question was cancelled upon the ground that there had been a subleasing in violation of the terms of the lease agreement. The contest proceeding was filed under § 132-181 N.M.Stat. Ann.Comp.1929, which reads as follows:

“Contests-Rules. Any person, association of persons, or corporation claiming any right, title, interest or priority of claim, in or to any state lands, covered by any lease, contract, grant or any other instrument executed by the commissioner, shall have the right to initiate a contest before the commissioner who shall have the power to hear and determine same. The commissioner shall prescribe appropriate rules and regulations to govern the practice and procedure of such contests. (L. '12, Ch. 82, § 69; Code '15, § 5247).”

Appellees claim, and they were supported in this contention by the trial court as hereafter shown, that appellant Lusk had no such claim of interest in the land in question as would authorize her to bring such contest, and, moreover, that if there was to be a forfeiture or cancellation of the lease the Commissioner must be governed in proceedings directed to that end by § 132-121, N.M.Stat.Ann.Comp.1929, rather than by the statute above quoted. Obviously, appellant's only “claim” of interest must be based upon the fact that she was, simultaneously with initiating her contest, filing her own application to lease the land in question, if the cancellation sought should be had.

Section 132-121, supra provides: “Forfeiture and cancellation of leases. The violation of any of the terms, covenants or conditions of any lease or instrument in writing executed by the commissioner covering state lands, or the non-payment by any lessee of such lands of rental notes, except when lien therefor is enforced as hereinbefore provided in this chapter, shall, at the option of the commissioner work a forfeiture of any such lease or instrument in writing after thirty days' notice to the lessee by registered mail, addressed to his last known post office address of record in the state land office, and to the other makers, if any, upon such rental notes; Provided, if within said thirty days the lessee shall fail to comply with demand made in any such notice, after the expiration of said period of time the other makers upon any such rental note may pay same and have the rights of any such lessee transferred to them. In default of payment of any such note or notes as aforesaid, any creditor of the lessee may pay same and have the rights of any such lessee transferred to him. (L. '21, Ch. 8, § 1, amending Code '15, § 5198).”

Upon appeal to the District court and upon trial de novo, as provided by law, the District court held that the cancellation of the lease attempted by the Commissioner was without right and gave judgment for appellees. Appellant brings this appeal setting up, in substance, four grounds for reversal, viz., (1) that the question involved has become moot since the lease in question expired prior to the hearing in the District court; (2) the court erred in that it failed to make findings of fact and conclusions of law; (3) the court erred in holding that to declare a forfeiture of the lease the Commissioner should have proceeded under § 132-121 N.M.Stat.Ann. Comp.1929, rather than under § 132-181, supra, which was followed, and, (4) the trial court erred in holding there was no subleasing.

Some fifty “exceptions” and assignments or error are set out in appellant's brief, but only four points, as we understand, are argued. These, appellees challenge by motion, and otherwise, as not being, in fact, assignments...