Marquez v. Marquez

• Decision Date: 15 February 1965
• Docket Number: No. 7575,7575
• Citation: 74 N.M. 795,399 P.2d 282,1965 NMSC 16
• Parties: Eleanor G. MARQUEZ, Plaintiff-Appellee, v. E. B. MARQUEZ, Jr., Gabriel Marquez, Leo Marquez, Mrs. Arnold Chavez, Mrs. Damicio Ulibarri, Onecimo Marquez, Joe Marquez, Viola Marquez, Ester Marquez, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 282

399 P.2d 282

74 N.M. 795

Eleanor G. MARQUEZ, Plaintiff-Appellee, v. E. B. MARQUEZ, Jr., Gabriel Marquez, Leo Marquez, Mrs Arnold Chavez, Mrs. Damicio Ulibarri, Onecimo Marquez, Joe Marquez, Viola Marquez Ester Marquez, Defendants-Appellants.

No. 7575.

Supreme Court of New Mexico.

Feb. 15, 1965.

Stowers & Duran, Albuquerque, for appellants.

Frank O. Westerfield, Jr., George F. Stevens, Albuquerque, for appellees.

COMPTON, Justice.

This appeal is from a judgment in a partition action ordering a sale of land, a division and sale of cattle, and an award for services rendered. The action grows out of a family dispute between the appellee, Eleanor G. Marquez, and three of her children, the appellants. Her other six children, though served with process, made no appearance in the lower court and are not parties to this appeal.

The property involved, owned by all of the parties as tenants in common, consists of approximately 1658 acres of ranch land located in Valencia County, on which are situated a dwelling house and several barns or storage sheds, and some personalty. It was stipulated at the trial that title to an undivided five-eighths interest therein was acquired by the appellee, and that the remaining three-eighths interest therein was acquired by the nine defendants through the death of Benedicto Marquez, husband of appellee and father of the appellants, who died in 1955.

The complaint prayed for a division and partition of the property according to the respective rights of the parties, and for a sale if it should appear that partition could not be made without great injustice to the owners. In a second cause of action appellee asked for the appointment of a receiver to sell the cattle owned jointly by the parties and for a disbursement of the proceeds therefrom pursuant to the order of the court.

Appellants responded, denying there should be a partition of the land. They affirmatively alleged that a partition would work an injustice not only to them but to all of the heirs; that all monies that had been derived from the sale of cattle on the property had been given to the appellee. They counterclaimed, in the event of a partition, for a credit of $6,000.00 for labor, material and monies expended by them in maintaining and supervising the ranch.

The evidence related primarily to the dealings between the parties, the possession of the premises, ownership of the cattle thereon, distribution of proceeds of sales of cattle, and services performed by the appellants for the estate. At the conclusion of the trial, the court orally made what it denominated informal findings, stating in part:

'* * * Now as I understand it, Mrs. Marquez, the Plaintiff in this case, owns the five eighths interest in this property and the children own three eighths under the law. Also, since they own it jointly, I understand the law is that if anyone of the parties involved desires that it be partitioned, they have that right to insist that it be divided. However, this particular case, it would be a mistake to divide this ranch up into all these different parts. As I understand it, it would ruin the ranch. So that the only solution seems to be to try to sell the ranch at the highest possible price that you can receive for it, and then divide the proceeds according to the interest owned by each party. * * *'

Immediately following, and in response to a question by the court relating to the sale of the property, counsel for the appellants stated:

'If that land can be sold for forty thousand or forty-five thousand, there is not problem. We are perfectly willing to have it sold. But we would appreciate having the opportunity in the event, if the land price keeps being knocked down, that the brothers have a right to buy it first at that forced sale price. If it's going to be sold at a forced sale price, the brothers should be allowed to purchase it.'

After making its formal findings of fact the court concluded that the appellee was the owner of a five-eighths interest in the property and the defendants jointly, including these appellants, owned an undivided three-eighths interest therein; that a receiver should be appointed to sell the estate cattle and divide the proceeds according to the interests of the parties; that the appellants were entitled to recover $300.00 for their services to the estate (this amount was corrected in the judgment to $500.00) and that a partition of the premises should be decreed and commissioners appointed for that purpose.

Thereafter, doubtless taking into consideration its so-called informal findings and other proceedings at the conclusion of the trial, the court entered a judgment ordering, among other things, a sale of the property and the appointment of...