Mcdaniel v. Mcdaniel.

• Decision Date: 05 October 1932
• Docket Number: No. 3667.,3667.
• Citation: 15 P.2d 229,36 N.M. 335
• Parties: McDANIELv.McDANIEL.
• Court: New Mexico Supreme Court

36 N.M. 335

15 P.2d 229

McDANIEL

v.McDANIEL.

No. 3667.

Supreme Court of New Mexico.

Oct. 5, 1932.

Syllabus by the Court.

Separation agreement whereby wife releases, for adequate consideration, entire interest in community, will not be set aside at suit of wife, where just and equitable (Comp. St. 1929, §§ 68-201, 68-510, 68-511).

Separation agreement, wherein wife released interest in community in consideration of husband making stipulated payments for support of minor children, held supported by adequate consideration (Comp. St. 1929, §§ 68-201, 68-510, 68-511).

No implied promise requires husband to pay wife for support of children retained in her custody during separation attributable to her own fault.

Deed from husband to wife, or vice versa, conveying interest in community, held not prohibited by statute declaring void attempt by either alone to transfer community realty (Laws 1915, c. 84).

Equitable estate in fee will support suit to quiet title.

1. A separation agreement between husband and wife, fairly entered into under the authority of sections 68-201, 68-510, 68-511, Comp. St. 1929, whereby the wife releases unto the husband for an adequate consideration her entire interest in the community, will not be set aside at suit of the wife where just and equitable in its terms.

2. Present agreement examined, and held based upon an adequate consideration.

3. There is no implied promise on the husband's part to pay the wife for support furnished by her to the children of the marriage, retained in her custody during a separation attributable to her own fault, particularly where the husband and father was able and willing to support and maintain the children in his own home.

4. A deed from husband to wife, or wife to husband, conveying interests in community real property, is not within the prohibition imposed by chapter 84, Laws of 1915, declaring void any attempt by either alone to transfer or convey any interest in real property of the community.

5. An equitable estate in fee may be made the basis of a suit to quiet title.

Appeal from District Court, Lea County; G. A. Richardson, Judge.

Suit by Alva A. McDaniel against Diana M. McDaniel. Judgment in favor of the plaintiff, and the defendant appeals.

Affirmed, and the cause remanded.

Equitable estate in fee will support suit to quiet title.

G. L. Reese, of Roswell, and Whelan & Reese, of Lovington, for appellant.

Tom W. Neal, of Lovington, for appellee.

SADLER, J.

On May 22, 1920, the appellee, plaintiff below, and the appellant, defendant in the trial court, being husband and wife, entered into a separation agreement in writing whereby they agreed to live separate and apart. Actually, as found by the trial court in a decree of divorce subsequently awarded the plaintiff against defendant for abandonment, the latter had deserted her husband about August 18, 1920, four days prior to the execution of the separation agreement. There were two minor children, a son and a daughter, aged respectively eleven and ten at the date of the agreement. The agreement contemplated that they should remain in defendant's custody and provided that in consideration of a monthly payment of $20 by plaintiff to defendant for 105 months “to help support and care for” said minor children, the defendant would convey to plaintiff her entire interest in the community property describing it. The contract and a quitclaim deed were to be and were placed in escrow pending performance of the contract.

On August 23, 1921, following the agreement, as above noted, the plaintiff secured a divorce from the defendant in Lea County, N. M. The divorce decree contained a recital that it did not purport to affect the property rights of the parties, nor any claim for alimony, nor support for the minor children, all of which were, so far as that decree was concerned and recited, “left open without action thereon and subject to future litigation.”

Almost immediately after execution of the separation agreement the defendant departed for California, taking with her the two minor children of the marriage. She established a home for herself and the children in that state, and there they have since remained, except for a trip or trips back to New Mexico, in connection with this litigation. Approximately a year before the institution of the suit out of which this appeal arose, the plaintiff completed the payments called for by the separation agreement and took up the quitclaim deed provided for therein. After said agreement was executed, though pursuant to an understanding previously had between plaintiff and defendant and another party, 120 acres of the land described in the agreement were exchanged for 160 acres owned by such other party.

Such was the situation of the parties in March, 1930, when plaintiff instituted this suit against the defendant in the district court of Lea county to quiet his title to the real estate involved herein, consisting of two town lots in the village of Lovington and 320 acres of land, including that substituted by the exchange aforesaid, all in Lea county, N. M., being the same property described in the separation agreement and in the quitclaim deed, except for the substitution above mentioned.

Unless said separation agreement is to be set aside upon some of the grounds of attack made on it, it must follow that plaintiff was entitled to a decree quieting his title to the property in suit against the adverse claim asserted in it by the defendant. The defendant insists the separation agreement was wholly without consideration since that recited-contribution of a monthly sum as support for his minor children-was something he was already legally obligated to do; that a promise to do what the law requires one to do furnishes no consideration. It was also urged by defendant below, and the contention is here renewed, that the plaintiff failed to sustain the burden imposed on him under the doctrine of Beals v. Ares, 25 N. M. 459, 185 P. 780, of showing: (1) Payment of an adequate consideration; (2) full disclosure as to wife's rights, and value and extent of the community property; and (3) that the wife had competent and independent advice in the negotiations leading up to the agreement.

The defendant charged fraud and undue influence in the procuring of her signature to the agreement. She filed a cross-complaint asking that her title to an undivided half interest in said real estate be quieted. She also sought to recover and have satisfied out of the undivided half interest which she conceded as plaintiff's community share of the property in question the sum of $6,600 claimed to be the excess advanced by her for support of the children over and above plaintiff's contributions under the agreement.

The findings of the trial court where all of the foregoing points were in issue were favorable to the plaintiff, appellee here. Substantially, the court found that the transaction was free from fraud, concealment, or duress of any character; that defendant knew and was fully advised as to the extent and value of the community property; that the agreement was fair and equitable and as desired by her at that time; that she was represented and advised throughout by an attorney, who prepared the separation agreement and presented it to plaintiff for signature and that he signed same; that at that time the entire community property had a value of only $1,500; that plaintiff had no separate estate, but that defendant then owned separately 320 acres in Lea county having a value of $1,500 and in addition was possessed of an interest in her father's estate valued at $3,500. The court further found that plaintiff had paid the entire sum provided for in the separation agreement, to wit, $20 per month for 105 months, a total of $2,100 and, though not called for by the contract, had paid defendant over said period the additional sum of $397, and his daughter an additional $100; that defendant had accepted the full consideration to be paid her under said agreement, and had since May 22, 1920, acquiesced in said settlement; and, finally, that the agreement was based upon an adequate consideration.

The court concluded that defendant was not entitled to recover from plaintiff any moneys advanced by her since the divorce for support of the children and that plaintiff's title should be quieted to the real estate against claims of the defendant. Decree was thereupon entered accordingly.

We have carefully examined the entire record, and though defendant questions the sufficiency of the evidence to sustain each material finding, we are not persuaded that any of them lacks substantial support. Perhaps the most serious assaults are made upon two particular findings of the court: First, that defendant had independent legal advice in respect to the separation agreement executed; and, second, that such agreement was supported by an adequate consideration.

As to the finding first mentioned, it is an admitted fact that she employed an attorney who prepared and procured the execution of the agreement by plaintiff. She contends that such attorney acted simply in a ministerial capacity as draftsman of the instrument, and that she consulted him in no way as to her property rights. The attorney in question was dead at the time of the trial. If living, a nice question might have been presented as to whether his testimony on the issue could have been compelled against a claim of privilege by defendant. The plaintiff, who was unrepresented by counsel at time of the agreement, testified he was not present at any conferences between his wife and her counsel and, of course, was unable to state of his own knowledge the exact nature of the employment. Having admittedly employed an attorney to prepare an instrument disposing of her property rights in the community, it would have been only natural for her to consult him with reference to those rights. It was legitimate for the trial judge, under all the...