Mckinley County Abstract & Inv. Co. v. Shaw.

• Citation: 239 P. 865,30 N.M. 517
• Decision Date: 21 September 1925
• Docket Number: No. 2831.,2831.
• Court: New Mexico Supreme Court
• Parties: McKINLEY COUNTY ABSTRACT & INVESTMENT CO.v.SHAW.

30 N.M. 517

239 P. 865

McKINLEY COUNTY ABSTRACT & INVESTMENT CO.

v.SHAW.

No. 2831.

Supreme Court of New Mexico.

Sept. 21, 1925.

Syllabus by the Court.

Failure to give prior notice of the entry of judgment in a case taken under advisement, as required by section 4229, Code 1915, is an irregularity to be taken advantage of by motion to vacate, under section 4230, Code 1915. The lack of such notice is not available as error if no motion to vacate has been made, particularly if the appellant has succeeded nunc pro tunc in obtaining consideration of his objections and their incorporation in the record.

A resulting trust may be shown by parol evidence.

Waiver of building restrictions in a deed may be shown by parol.

Estoppel to enforce building restrictions in a deed may be shown by parol.

Authority of officers and agents to bind a corporation by waiver or estoppel not always necessarily shown by formal action of board of directors.

Appeal from District Court, McKinley County; Holloman, Judge.

Suit by the McKinley County Abstract & Investment Company against M. Shaw. From an adverse judgment, plaintiff appeals. Affirmed.

Failure to give prior notice of entry of judgment in case taken under advisement, as required by Code 1915, § 4229, is an irregularity to be taken advantage of by motion to vacate under section 4230.

A. T. Hannett, of Gallup, for appellant.

E. A. Martin and J. W. Chapman, both of Gallup, for appellee.

WATSON, J.

This is a suit brought by appellant in the district court of McKinley county for an injunction to restrain violation of a building restriction. Upon the complaint and the giving of bond, temporary injunction issued, with order to show cause why it should not be made perpetual. Answer was filed and a hearing had.

From findings 1 to 4 it appears in substance that the appellant, under its former corporate name of the Thornton-Ridington Company, purchased a certain tract of land which it subdivided and platted as an addition to the town of Gallup, and was engaged in selling lots therein, in the great majority of cases inserting in the deeds thereto the following restriction:

“Provided always that it is one of the conditions of this deed that the grantee herein, his heirs or assigns forever, will not build or permit to be built more than one house on any two lots or more than two houses on any three lots, and in no event any house that costs less than $3,500 to build.”

And that on March 1, 1920, plaintiff sold the lots in question to one H. W. Potts, and conveyed the same by deed including such restriction.

The fifth, sixth, and seventh findings are as follows:

“Fifth. That the said H. W. Potts, becoming, for some reason, dissatisfied with the nature of the lots so bought by him, entered into an agreement with the said plaintiff to retransfer the lots so purchased, and to receive in lieu thereof a deed to other lots selected by him; that the said Potts did so receive other lots from this plaintiff, but, for some reason undisclosed by the evidence, the deed retransferring the lots first bought by the said Potts was made, not to the plaintiff herein, but to one C. R. Ridington, who was at that time an officer of this plaintiff; that the deed retransferring said lots to C. R. Ridington as aforesaid from the said H. W. Potts did not contain any restriction or condition as to the use and enjoyment of the property conveyed.

Sixth. That thereafter the said plaintiff, through its authorized agent, W. W. Turner, negotiated a sale for the lots formerly sold to said Potts, to the defendant herein. That the defendant refused to purchase said lots subject to any restriction or condition as to the use and enjoyment of the land, and, after long negotiations, the said plaintiff, through its officers, authorized and instructed the said W. W. Turner, as its agent, to sell the said lots to this defendant and to tell her that the said conditions and restrictions would not be enforced as to her, and authorized the said Turner to deliver to the defendant a deed for said lots, signed and executed by the said Ridington, which did not contain any such condition or restriction; that the said Turner, acting under said authority, did deliver a deed, without restriction or condition, to this defendant and did assure her that any such restriction or condition would not be enforced as to her, the said Turner then and their receiving from this defendant the purchase price of the said lots, and turned the money so received, less his commission for said sale, over to the plaintiff herein.

Seventh. The court further finds that at various times officers of said plaintiff made similar representations to this defendant that she should receive a deed and should take said lots without restrictions or conditions.”

Upon these findings, the court concluded as matter of law that the defendant took the title to the lots in question free and clear from any conditions or restrictions as to the use and enjoyment thereof, that the complaint should be dismissed for want of equity, and that the preliminary injunction was wrongfully and improvidently sued out by plaintiff and should be dissolved. Judgment was rendered dismissing the complaint, dissolving the injunction, for $100 as attorneys' fees, and for the costs of the suit.

At the conclusion of the trial, the court took the cause under advisement, requiring the parties to file briefs on the law and the evidence. Thereafter, on September 5, 1922, the findings, conclusion, and decree were signed and filed without any notice to the appellant. Thereafter appellant presented to the court his objections to the decree and the findings and conclusions, wherein is included the objection “that the plaintiff was given no notice whatever of the signing of the judgment given in this cause, and for the further reason that the plaintiff was given no opportunity to file requested findings of fact and conclusions of law.” An order was made by the court, dated January 10, 1923, reciting that the cause came on to be heard on plaintiff's objections, and that both parties appeared by their attorneys. It was ordered that plaintiff be allowed to file its objections nunc pro tunc, and that the record show that such objections were filed before the judgment and considered and overruled by the court, and that plaintiff requested an exception to the ruling, which was granted.

Appellant complains first of error in the overruling of his objection to the decree on the ground that it was signed without notice, citing sections 4229 and 4197, Code of 1915. In Fullen v. Fullen, 21 N. M. 212, 153 P. 294, this court had occasion to consider section 4229 and the purpose thereof. It was there said:

“When a case has been submitted and taken under advisement by the court, the parties should have an opportunity, before the decree is entered, to suggest the form of the decree, except to findings of fact and conclusions of law by the court, if so advised, and to propose other findings and conclusions, so that their respective views, theories, and contentions may be fairly represented by the record. If this opportunity is offered to a party, he has had all that he is entitled to by way of notice.”

From the procedure adopted by the appellant in this cause, and the action of the court, it is to be inferred that appellant did present to the court all the objections which he desired to present to the decree and findings, and it appears that all of his objections were considered and overruled by the court. Thus, while appellant did not have the opportunity which the section in question contemplates, he was allowed to take a later opportunity to accomplish the same purpose. He is, therefore, in the position of...