Martinez v. Mundy

• Decision Date: 20 March 1956
• Docket Number: No. 5928,5928
• Citation: 1956 NMSC 37,61 N.M. 87,295 P.2d 209
• Parties: Jose Maria MARTINEZ, Jose Remigio Martinez, Onesimo Trujillo, Daniel Trujillo, Manuel Gallegos, and Santiago Gonzales, Appellants, v. W. H. MUNDY, Sr., and W. H. Mundy, Jr., Appellees.
• Court: New Mexico Supreme Court

Page 209

295 P.2d 209

61 N.M. 87

Jose Maria MARTINEZ, Jose Remigio Martinez, Onesimo Trujillo, Daniel Trujillo, Manuel Gallegos, and Santiago Gonzales, Appellants, v. W. H. MUNDY, Sr., and W. H. Mundy, Jr., Appellees.

No. 5928.

Supreme Court of New Mexico.

March 20, 1956.

Harry L. Bigbee, Donnan Stephenson, Santa Fe, Quincy D. Adams, Albuquerque, for appellants.

Gilbert, White & Gilbert, Seth & Montgomery, Santa Fe, for appellees.

McMANUS, District Judge.

This action began by the filing of the first pleading in the district court of Rio Arriba County on August 4, 1951. The complaint was one in ejectment alleging generally that the plaintiffs were entitled to possession of a tract of land described therein (referred to herein as the Mundy Tract); that the defendants have unlawfully withheld and do now withhold from plaintiffs the possession of said land, praying damages therefor. For their answer, the defendants deny the material allegations of the complaint and by separate defenses raise the contention that defendants, appellees, and their predecessors in interest obtained title by adverse possession by virtue of actual, visible and notorious possession in good faith under color of title, claiming further that taxes were paid and that no suit had been effectively prosecuted during said period of time. The defendants, (appellees) further alleged that they, the defendants, and their predecessors in interest, had held possession of the property by virtue of deeds of conveyance purporting to convey an interest in fee simple. The defendants also asserted in their counter-claim a statutory form of quiet title suit wherein they prayed that their title be quieted. A demurrer was filed to the counter-claim by the appellants raising questions to the effect that the Rules of Civl Procedure did not apply to an action in ejectment, and that a counter-claim is not a proper pleading and other matters which will be discussed hereinafter. There appears in appellants' brief, references to their objections to a change of venue obtained in this suit but there is nothing in the record or in either of the briefs to indicate that such a change was improper at the time it was granted. The pleadings also indicate a motion for separate and prior trial of certain issues before the trial court made by the appellees. This motion was granted by the trial court and the case was tried on the issues raised by defendants' counter-claim and plaintiffs' reply thereto, without jury.

A motion for an advisory jury was further overruled by the trial court. A final decree was entered decreeing that the defendants and counter-claimants, the appellees here, were the owners in fee simple of the land described in the complaint and further ordered the title quieted in their behalf.

Upon appeal of the decree of the lower court, this cause comes to this court on fifty-eight assignments of error. All of said assignments of error are argued in six points which we will take up in sequence.

The first point raised by the appellants, alleges that the appellees' basic title is defective in that it can be traced only to Francisco Martinez, who was merely one of the heirs of Manuel Martinez, whose title was confirmed by the Act of Congress of June 21, 1860, 12 Stat. 71. The matters contained in appellants' first point constitute a collateral attack on the patent granted by the United States to Francisco Martinez. It is fundamental that a patent is the highest evidence of title, and with it passes all control of the executive department of the government over the title and as a general rule it is impeachable only for fraud or mistake and is presumptive evidence of the true performance of every prerequisite to its issuance. It is also well settled that a patent is, on collateral attack, deemed to be conclusive that the government has passed its title to the lands granted and that all prerequisites existed and were complied with so as to render it a complete and lawful act.

Further, the question of this very patent to Francisco Martinez was discussed in the case entitled H. N. D. Land Co. v. Suazo, 44 N.M. 547, 105 P.2d 744, 749, wherein the court discussed the lands involved within the Tierra Amarilla Grant, the lands involved in the instant case being within said grant.

In H. N. D. Land Co. case, this court referred to the history leading up to the patent issued to Francisco Martinez. In concluding their opinion said:

'So, if this were a private grant, the act of confirmation merely carried out the treaty obligation; if it were a community grant, the common lands were merely government domain and the confirmation constituted a grant de novo to the grantee, Francisco Martinez. Under either view the absolute title was vested, by the act of confirmation in the said grantee.'

The above indicates that the validity of the patent to Francisco Martinez has been decided. Therefore, the commencement of the title, for all practical purposes, begins with Francisco Martinez and thereby the appellants have failed to sustain their arguments contained in Point One.

The appellants, for their second point offer that there are fatal defects in appellee's chain of title subsequent to the patent from the United States to Francisco Martinez. This chain of title referred to runs from the United States of America to Francisco Martinez by patent. The next conveyance runs from Francisco Martinez and wife to F. A. Manzanares, dated June 1, 1871. The next conveyance is from Manzanares to Thomas B. Catron dated December 31, 1878. The appellants have no strenuous objection to the validity of the conveyances between the holding of title by Catron down the line to the last conveyance to the defendants and appellees herein.

The appellants do not question that the above referred to instruments were executed, but argue that the language contained on the face of said deed is peculiar.

It is the appellants' assertion that the face of the document shows no intention to convey the entire Tierra Amarilla Grant to Manzanares and state that the deed is conflicting and ambiguous in its terms. To this end we will first look at the Martinez to Manzanares deed, and the entire granting clause of said deed reads as follows:

'* * * we have granted, bargained, sold, transferred, conveyed and confirmed, and by these presents do grant, bargain, sell, transfer and confirm to the said party of the second part and to his heirs, successors and assigns, forever, all of the right, title and interest which as heirs and original grantees appertains to us, or could appertain to us at any time and by any inheritance or by whatever other manner in the entire property, and possession and grant known as the Tierra Amarilla in the County of Rio Arriba, Territory of New Mexico.'

Following the granting clause is a reference to 150 varas of tillable land which is quoted as follows:

'Giving notice also that the party of the second part will take possession of 150 varas of tillable, land situated in the Lugar de los Ojos, within the said Grant;'

We can see from the above that the granting clause on its face conveys all of the grantors' interest in the entire property, the grant known as the Tierra Amarilla, in the County of Rio Arriba, Territory of New Mexico.

It is fundamental that a deed must be read as a whole and while there may be some unexplained verbiage in part of the deed, it is well established that the granting clause is the main source for determining the estate or interest to be conveyed and to that end we quote Thompson on Real Property, Permanent Edition, Volume 6 Sec. 3188 at page 347, where it is stated:

'When the recitals agree with the operative part of a deed they have no legal effect; and, if the operative part of a deed is clear and unambiguous, recitals at variance with it are of no effect. The operative clause, when clear, always controls the recitals. * * *'

To the same effect is the language contained in III American Law of Property, Sec. 12.94, which reads as follows:

'* * * The granting clause is the main source for determining the estate or interest conveyed. Although resort may be had to other parts to ascertain its meaning or to supply information lacking therein, the omission of anything on the subject elsewhere in the deed is immaterial, and in the case of other clauses being inconsistent and irreconcilable, the granting clause will control. * * *'

These principles are further found in Porter v. Henderson, 203 Ala. 312, 82 So. 668; in re Brolasky's Estate, 309 Pa. 30, 163 A. 292, and in 26 C.J.S., Deeds, Sec. 128, p. 429. In further support of the foregoing the appellees cite in their brief the following cases: Campbell v. Wells, 278 Ky. 209, 128 S.W.2d 592; Ontelaunee Orchards v. Rothermel, 139 Pa.Super. 44, 11 A.2d 543; Houghtaling v. Stoothoff, 170 Misc. 773, 12 N.Y.S.2d 207; Peterson v. City of New York, 235 App.Div. 41, 256 N.Y.S. 139; Baumert v. Malkin, 235 N.Y. 115, 139 N.E. 210; Armijo v. Town of Atrisco, 56 N.M. 2, 239 P.2d 535; Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Murphy v. Jamison, Tex.Civ.App., 117 S.W.2d 127; Hartwick v. Herberling, 364 Ill. 523, 4 N.E.2d 965.

While this court will not speculate as to the reference to the 150 varas, we are convinced that the deed from Martinez to Manzanares conveyed the entire grant by such conveyance.

Coming now to the deed from Francisco A. Manzanares and wife to Thomas B. Catron, we find the following language in the deed:

'Witnesseth: that the said parties of the first part * * * have remised, released, sold, conveyed * * * by these presents do remise, release, sell, convey and quitclaim unto the said party of the second part, and to his heirs and assigns forever, all the right, title, interest, claim and demand whatsoever of the said parties of the first part of, in and to the following described real estate and property situate partly in the Counties of Rio Arriba and Taos in the Territory of New Mexico, and...