De Mares v. Gilpin

• Decision Date: 13 June 1890
• Citation: 24 P. 568,15 Colo. 76
• Parties: DE MARES v. GILPIN et al.
• Court: Colorado Supreme Court

24 P. 568

15 Colo. 76

DE MARES v. GILPIN et al.

Supreme Court of Colorado

June 13, 1890

Commissioners' decision. Appeal from district court, Arapahoe county.

J. C. Stallcup and Wells, McNeal &amp Taylor, for appellant.

Markham & Dillon and Bela M. Hughes, for appellees.

REED C.

This was a proceeding in equity brought by Benigna Lee De Mares against William Gilpin, William J. Palmer, and several others, to recover an undivided half interest in a large body of land, alleged to be some 200,000 acres, in the county of Costilla. The amended complaint was filed September 2, 1882. After the institution of the suit, the plaintiff died; and her surviving husband, Vicente De Mares, was substituted in her stead. It is stated in the complaint that plaintiff, was the sole heir of Stephen Louis Lee, born in Taos, N. M., in April, 1830, married to Joseph Pley in 1841 and after his death married, in 1877, to the present plaintiff, Vicente De Mares; that, in the years 1843 and 1844, her father, Stephen Louis Lee, and Narciso Beaubien, obtained from the Mexican government a grant of land, including the land in controversy; that her father and Beaubien both died on the same day,--January 19, 1847,--each seised of one-half of the land; that she, as sole heir, entered into and held possession of one-half the grant, and was in possession at the time of the execution of the treaty of Guadalupe Hidalgo, February 22, 1848. From all that appears, this condition of affairs continued until after the passage by congress of the act approved July 22, 1854, entitled 'An act to establish the offices of surveyor general of New Mexico, etc., and for other purposes,' when Charles Beaubien, son of original grantee, Narciso Beaubien, as sole claimant, applied to William Pelham, surveyor general of New Mexico, to have the grant surveyed and approved, which was done in the year 1856; that subsequently Charles Beaubien, as sole owner, applied to congress to have the grant confirmed to him, which was done by an act approved June 21, 1860. Plaintiff then states, on information and belief, that on or about the 4th day of May, 1848, her husband, Joseph Pley, claiming to be the administrator of the estate of her father by an appointment from the prefect court of the county of Taos, N. M., at the instance and at the solicitation of Charles Beaubien, in consideration of the release of a large indebtedness owing from Pley to him and for goods, chattels, and lands conveyed to Pley, made, executed, and delivered to Beaubien a deed of the undivided one-half of the entire grant; that such deed was fraudulent and void; that no order or decree of the prefect court, or any other court, was made, authorizing or empowering him to make a sale and conveyance; and that the prefect court had no authority to make such a decree. Also, that it is pretended and claimed that on January 27, 1858, plaintiff, her husband Joseph Pley, and her mother, Maria de la Luz Tafoya, made and executed a deed to one Ceran St. Vrain of their undivided one-half of the granted land; that such deed, if any, was a forgery, and was never executed or acknowledged by her mother or herself; that neither the deed pretended to have been made by Pley as administrator to Charles Beaubien, nor the pretended deed of plaintiff, her mother, and Pley, to St. Vrain were recorded in the county of Taos, N. M., nor in the county of Costilla, in this state, until one year before the institution of this suit; that plaintiff, until one year before bringing suit, was not informed in regard to the pretended execution of the deeds, or of either of them, or of the fact that Beaubien, St. Vrain, or defendants denied her title, or claimed the right to exclusive possession of the land; and that Beaubien, St. Vrain, and defendants, and each of them, until one year before bringing suit, fraudulently concealed from the plaintiff knowledge of the pretended execution and existence of the two deeds, and avers that if Beaubien, St. Vrain, defendants or any of them, have at any time taken exclusive possession of the grant, or any part of it, it was at such remote distance from her residence that the fact was concealed from her. It is stated that, at about the time the land was granted, her father and Narciso Beaubien entered into possession of the granted lands, 'and erected thereon divers dwellings, stables, store-houses, and other buildings, and inclosed divers large tracts of the said land, and from thence until the decease of the said Stephen Louis Lee and Narciso Beaubien * * * they, in person, and by their tenants and servants, cultivated divers large tracts of said grant, and were in the actual occupation of the whole thereof,' and that, after the death of her father, she entered into the possession of the undivided one-half of such grant as a tenant in common with the heirs of Narciso Beaubien, and remained in the possession until the treaty of Guadalupe Hidalgo, and that, at all times from and after the death of her father until the time of the approval by the survey or general, she was in the actual occupancy and possession of the land jointly with heirs of Beaubien. Further avers that she was a Mexican, unacquainted with the English language, unable to read or write, and unfamiliar with business; that, at the time of the pretended conveyance by Pley, she was a married woman, and a minor, 'and ever since, except for a short period, hath been and still is a married woman, and, by the laws, usages, and customs of New Mexico, * * * under the control, power, and authority of her husband;' and that, by reason of the premises, Beaubien, St. Vrain, and defendants have been able to conceal from her their pretended claims to the property.

A demurrer containing 24 special supposed grounds was filed. The grounds of demurrer, for the purpose of this discussion, may be grouped as follows: (1) A general want of equity, which may be considered as embracing all the causes or grounds; (2) laches or neglect on the part of the plaintiff; (3) a failure to connect defendants in any way with the alleged frauds by which Beaubien and St. Vrain attempted to divest her of title; (4) a failure to charge defendants, or any of them, with knowledge of the frauds by which it is claimed Beaubien and St. Vrain obtained the ostensible title. The demurrer was sustained, and a decree entered dismissing the bill, from which an appeal was taken.

It is contended that Charles Beaubien became the trustee of plaintiff. It is said in the complaint that, although the approval and confirmation were to him, and in his own name and behalf, 'the confirmation inured to the benefit of the plaintiff to the extent of one undivided half part of the said donation or grant of lands.' It is not claimed that the trust was created by any direct conveyance or act of the plaintiff or an ancestor. It is not claimed that there was an express trust. The trust, if any, was an implied or resulting trust by operation of law growing out of the alleged relation of the parties to the subject-matter of the controversy. 1 Greenl. Cruise, 391; Dyer v. Dyer, 2 Cox, 92; Wallace v. Duffield, 2 Serg. & R. 521. The distinction between express and resulting trusts is important, and the rule of law in regard to notice differs materially in the two.

1. In regard to the supposed laches and negligence of plaintiff in asserting her alleged rights, and, for the present, leaving entirely out of the discussion the two alleged fraudulent deeds,--the one from Pley to Beaubien, and that of plaintiff her mother and husband, to St. Vrain,--we find that Charles Beaubien, some time prior to December 30, 1856, applied to the surveyor general to have the grant surveyed and approved under the act of congress of July 22, 1854, and on that date, December 30, 1856, the grant was approved; that subsequently he applied to congress to have the title to the grant confirmed, which was done under the act of congress, approved June 21, 1860. The applications for approval and confirmation were both made by Beaubien as sole owner. There is no allegation of any contract or agreement whereby any supposed rights of plaintiff were to be recognized and protected, and that Beaubien should take the entire title, one-half in trust for her, and afterwards convey. The acts of approval and confirmation were both open, public, and notorious acts, of which she was bound to take notice, and, in the absence of contract, an assertion of the entire title in himself, to her exclusion, and a denial of any title in her, or of any trust in himself. 'A legislative confirmation of a claim to land is a recognition of the validity of such claim, and operates as effectually as a grant or quitclaim deed from the government.' Langdeau v. Hanes, 21 Wall. 530. 'A confirmation is the conveyance of an estate or right that one hath in or unto lands or tenements to another, that hath the possession thereof, or some estate therein, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased and enlarged.' Shep. Touch. 311. By section 8 of the act of congress for the appointment of the surveyor general for the territory of New Mexico, it is enacted 'that it shall be the duty of the surveyor general, under such instructions as may be given by the secretary of the interior, to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico, and for this purpose may issue notices, summon witnesses, administer oaths, and do and perform all other necessary acts in the premises. He shall make a full report on all such claims as originated before the session of the territory to the United States by the treaty of Guadalupe Hidalgo of 1848, denoting the various grades of...