McCloskey v. Shortle

• Decision Date: 13 January 1937
• Docket Number: 4200.
• Parties: McCLOSKEY et al. v. SHORTLE.
• Court: New Mexico Supreme Court

64 P.2d 1294

41 N.M. 107, 1937 -NMSC- 005

McCLOSKEY et al.
v.
SHORTLE.

No. 4200.

Supreme Court of New Mexico

January 13, 1937

Rehearing Denied Feb. 23, 1937.

Appeal from District Court, Bernalillo County; Fred E. Wilson, Judge.

Action by Jesse St. Claire McCloskey, as administrator with the will annexed of the estate of Francis Newton McCloskey, deceased, and others against Alice M. Shortle. From a judgment dismissing the complaint, plaintiffs appeal.

Affirmed. [64 P.2d 1295]

T. W. Gibson, of Albuquerque, for appellants.

John F. Simms, of Albuquerque, for appellee.

BRICE, Justice.

This direct action was brought by the appellants (plaintiffs below) against the appellee (defendant below) to cancel a special master's deed, whereby certain real estate was conveyed, in pursuance of a sale made in a foreclosure proceeding, upon the alleged ground that such deed is void. We will refer to the parties as plaintiffs and defendant, as in the district court.

The defendant demurred to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action in that it showed on its face that all questions raised had theretofore been litigated (or could have been litigated) in a suit between the same parties in the same court. The plaintiffs stood upon their complaint and judgment of dismissal was entered. The contention here is that the court erred in sustaining the demurrer. Facts alleged in the complaint sufficient to determine the case are as follows:

On March 5, 1934, George Savage, a special master, made, executed, and delivered to the defendant a special master's deed by the terms of which there was conveyed to her certain real estate situated in the city of Albuquerque, N. M.; sold under and by virtue of a decree of the district court of Bernalillo county, entered in cause No. 20884, in which the defendant and her trustee were plaintiffs and plaintiffs herein were defendants. The provision in the decree which ordered the sale of the real estate in question was as follows:

"said real estate and improvements are ordered sold according to law and the practice of this Court to satisfy the demands of the plaintiffs unless the defendants, or some one or more of them shall within 90 days from the date of the entry of this Decree pay off and fully satisfy the claim of the plaintiffs as herein adjudged, with interest and costs."

Notice of sale was duly published by the special master appointed by the court to make the sale; and among its provisions were the following:

"Notice is hereby given that the undersigned receiver and Special Master will *** offer for sale and sell for cash [64 P.2d 1296] to the highest and best bidder, subject to the approval of the Court. ***

"Said sale will be made to satisfy a certain final decree made and entered in the above entitled Court and cause on the 21st day of October, 1933, wherein the Plaintiff, Alice M. Shortle, recovered a judgment against Defendants in the amount of Seventeen Thousand Five Hundred Dollars ($17,500.00), together with interest thereon at the rate of eight percent (8%) per annum from the 23rd day of August, 1933, until paid, and the additional sum of One Thousand Seven Hundred Fifty Dollars ($1,750.00) as attorney's fees, and Fourteen Dollars ($14.00) costs, which, on the day of said sale, will amount to the sum of Nineteen Thousand Nine Hundred. Eighty-three and 45-100 Dollars ($19,983.45), to which shall be added the cost of publishing this notice and such fee for the receiver and special master, as the Court may allow, and upon which shall be credited any sum of money which the receiver may have on hand at the time out of the rents, issues, and profits of the property;

"Said sale will be made subject to the lien of the unpaid taxes, paving liens and the lien of the Middle Rio Grande Conservancy District."

The special master filed his report of sale, in which it was stated:

"That at the hour of ten o'clock a. m. on the 28th day of February, 1934, this receiver and special master attended at the south door of the Bernalillo County Courthouse and made public sale of the property mentioned and set forth in the decree and notice of sale, and the highest and best bid received was from Alice M. Shortle, Plaintiff, who offered the sum of her debt, interest, attorney's fees and costs, together with the cost of publishing the notice of the receiver and special master and such fee as the Court might allow the receiver and special master, on condition that the cash on hand in the amount of Four Hundred Eighty-Three and 51/100 Dollars ($483.51) should first be paid over to her on her debt, and that the receiver collect and pay her the One Hundred Eighty Dollars ($180.00) due from Jesse St. Claire McCloskey as rent aforesaid, and this receiver and special master sold and struck off to the said Alice M. Shortle said real estate and improvements thereon for such price, subject to the approval of the Court."

The sale so made was modified and, as modified, was confirmed by the district court; after which defendants filed a motion in that case to set aside the order confirming the sale. This motion was overruled by the court; "on condition, however, that the purchaser, Alice M. Shortle, defendant herein, remit and waive...