McCord v. Ashbaugh
|24 May 1960
|352 P.2d 641,67 N.M. 61,1960 NMSC 45
|Billie Plain McCORD, Plaintiff-Appellant, v. H. R. ASHBAUGH and Elizabeth Ashbaugh, Defendants-Appellees.
|New Mexico Supreme Court
LaFel E. Oman, Las Cruces, for appellant.
J. Benson Newell, Las Cruces, for appellees.
This is a suit for a declaratory judgment wherein appellant sought to have the court determine the rights and interests of the parties in a 120-acre tract of land in Sierra County and to declare that appellees have no lien upon the land.
A brief history of the transactions involving the title will be beneficial. On October 22, 1955, one A. D. Turner and his wife gave a mortgage to appellant on the 120-acre tract of land in question as security for a $28,000 indebtedness. Thereafter, a suit to foreclose this mortgage was subsequently instituted by him but a settlement was reached and the case was not prosecuted to judgment.
On June 13, 1956, A. D. Turner and wife conveyed title to this tract by warranty deed to Myrtis Plain, mother of the appellant. Then on July 6, 1956, while title to the tract was in Myrtis Plain, appellees, H. R. and Elizabeth Ashbaugh, recovered a judgment in the amount of $5,725 against the Turners. A transcript of the judgment docket was filed for record on August 18, 1956.
Myrtis Plain conveyed the 120-acre tract to appellant by quitclaim deed on November 19, 1956.
Apparently an essential part of the value of this tract was a Forest Service grazing permit which was still in the name of the Turners even though they had previously conveyed the tract to Myrtis Plain. Consequently, on November 19, 1956, the Turners quitclaimed any interest in the tract to the appellant 'together with all Forest Allotment permits and rights, and all improvements thereon.'
Appellant, through her attorney, then made application to the Forest Service for transfer of the grazing permit, referring in her application to the recorded quitclaim deed from the Turners. Appellant's attorney was then advised by the Forest Service by letter that a quitclaim deed was not satisfactory, that a warranty deed was necessary. The letter from the Forest Service also stated that upon receipt of a copy of the recorded warranty deed the grazing permit would be transferred to the plaintiff. On January 12, 1957, the Turners executed a warranty deed to the 120-acre tract to appellant, 'together with all Forest Allotment permits and rights and all improvements thereon.'
This deed was forwarded to officials of the Forest Service who then advised the appellant's attorney that the words in the deed purporting to transfer the grazing permit had to be deleted since 'a grazing permit on a National Forest is only a privilege and not a property right.'
Subsequently, on March 1, 1957, appellant conveyed the property in question back to the Turners by warranty deed, including 'all Forest Permits incident thereto.' On March 12, 1957, the Turners reconveyed the property to appellant by warranty deed omitting any reference to grazing permits. Each of these deeds recited 'no cash consideration.'
When appellant subsequently found a buyer for the property in question, the prospective buyer's attorney required that a release be secured from the Ashbaughs due to the possibility that a judgment lien had attached to the property. The Ashbaughs refused to execute a release and appellant subsequently brought this suit for a declaratory judgment as previously stated.
In the suit for a declaratory judgment the only witness for appellant was Mr. Nelson the attorney who had represented her in the various negotiations and transfers. Witness Nelson testified that the warranty deed from appellant to the Turners, executed on March 1, 1957, was for the sole purpose of satisfying the Forest Service by them having the Turners reconvey the property to appellant omitting the objectionable phrase 'including all Forest Permits incident thereto.'
Appellant's theory of the case is that by the conveyance on March 1, 1957, the Turners acquired only a bare legal title, the beneficial interest remaining in appellant. Appellees, on the other hand, take the position that when the property was conveyed to the Turners on March 1, 1957, their judgment lien thereupon attached immediately under Sec. 21-9-6, 1953 Comp.
In the presentation of her case, appellant introduced certain correspondence between her original attorney, Mr. Nelson, and the Forest Service to establish that the sole motive in conveying the property to the Turners and then having them reconvey to her was to meet Forest Service requirements relative to the transfer of grazing permits.
Upon objection of appellees, the trial court ruled that this correspondence was inadmissible under the hearsay rule. It further ruled that the oral testimony of witness Nelson concerning the transactions was hearsay evidence. With this evidence excluded, the court understandably ruled that appellees' judgment lien had attached to the property and that it constituted a first priority lien. Appellant strongly urges, and we agree, that the exclusion of this evidence was reversible error.
The prohibition of the hearsay rule does not apply to all out-of-court utterances or writing as such. Such extrajudicial statements or writings are subject to the exclusionary impact of the hearsay rule only when they are offered to prove the truth of the matter asserted therein. 6 Wigmore, Evidence Sec. 1766 (3rd Ed. 1940); 2 Jones on Evidence Sec. 271; McCormick on Evidence Sec. 225. Obviously, proof of utterances or writings may be made for a number of purposes other than to prove the truth of the matter asserted. McCormick on Evidence Sec. 228.
In this case, the correspondence exchanged between attorney Nelson and the Forest Service officials was not offered to prove the truth of anything contained therein. This correspondence was offered to establish the motivating factor in conveying the property in question to the Turners, and it was certainly relevant evidence to establish that there was no intention that the Turners receive any beneficial interest in the property.
When an extrajudicial statement or writing aids in proving...
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