Neher v. Armijo

CourtSupreme Court of New Mexico
Citation54 P. 236,9 N.M. 325,1898 -NMSC- 005
PartiesNEHER v. ARMIJO et al.
Decision Date16 August 1898

Syllabus by the Court.

1. Tenants in common may join in ejectment, and recover their interest demanded, so held by them in common.

2. Under section 1911, Comp. Laws 1884, an order allowing plaintiff to amend by striking out parties plaintiff before trial, and without objection, is not erroneous, no injury appearing to have resulted to any of the parties.

3. The legal presumption that property acquired by either husband or wife during the matrimony is community property may be overcome by clear and conclusive proof to the contrary.

4. The act of a part of all the tenants in common in executing a deed with full warranty of convenants purporting to convey the entire estate is ouster of the other co-tenants.

5. Where one holds under color of title for statutory period the fact that the grantors in the deed under which he entered derived their title from a common ancestor with the plaintiffs will not estop him from setting up defense of adverse possession as against all demandants not under disability.

6. The statute of limitations creating title by adverse possession will not run against one in whose favor a right of action accrued while under a disability, and who commenced his action within the statutory period after the removal of the disability.

7. Under the Code it is within the power of this court to permit an amendment of the writ of error by striking out the parties defendant in error.

Error to district court, Bernalillo county; before Justice N. C Collier.

Action by Ambrosio Armijo and others against George K. Neher. Judgment for plaintiffs. Defendant brings error. Affirmed.

The facts as to which there is no dispute are that prior to the 14th day of June, 1880, Ambrosio Armijo was put in possession of the locus in quo under a contract to purchase same from the New Mexico Town Company, by Harry R. Whiting, as agent of that company, and on that day a deed was duly executed by that company to him, which deed was acknowledged and recorded in the manner provided by law. In the spring of 1882 Ambrosio Armijo leased the premises to John Boyle and Mary Boyle, his wife, and placed them in possession of the same, and thereafter, on the 10th day of April, 1882, died, leaving a last will and testament, which was duly admitted to probate by the probate court of Bernalillo, the county of Ambrosio Armijo's residence. On the 1st day of May, 1882, Perfecto Armijo, the eldest son of Ambrosio Armijo, and Candelaria G De Armijo, his widow, were duly appointed to execute the will, and qualified as such. The will left certain specified property to the widow, Candelaria G. De Armijo, contained one or two trifling bequests to servants, and devised the great bulk of the estate, including the locus in quo, to the 10 children of the testator, share and share alike. The will declares that there were no gains of the marriage community composed of the testator and Candelaria Armijo, in the following language: "I declare and believe that I have no property acquired during marriage. I have only kept my capital intact since I married the second time, but according to Pedro Murilla Velarde, and the laws of the country, I leave, direct, and order my executors that there shall be delivered to my wife the two paragraphs above entirely using about one-fifth of my property, which is what the laws of the country authorize." The inventory of the estate was taken on August 14, 1882, and concluded August 17, 1882, and is signed by the executors and by the appraisers appointed by the probate court, in which the locus in quo is appraised as "one lot and house occupied by John Boyle, $1,500." On August 26, 1882, in pursuance of an order of the probate court, the executors made a distribution of the estate, and executed and recorded hijuelas to the 10 children of Ambrosio Armijo, in which to each is set apart one-tenth interest in the locus in quo, in the following language: "One-tenth on one lot and house occupied by John Boyle, $150." Each of these instruments is signed by Perfecto Armijo and Candelaria G. De Armijo, administrators, and is approved by Tomas C. Gutierrez, judge of the probate court, May 11, 1883, and is recorded in the office of the probate clerk May 17, 1883. John Boyle continued in possession of the locus in quo, paying rent therefor to the executors, until the execution of a deed to A. M. Coddington on the 28th day of December, 1883. This rent was divided by the executors, one-tenth to each of the children. Teresa Armijo De Symington, wife of John Symington, was one of the children of Ambrosio Armijo, and on the 27th day of December, 1883, said Teresa and her said husband made a power of attorney to Elias H. Armijo to "sell our right, title, and interest individually as guardians of the estate of Dolores Armijo, a minor, in lot No. 17 in block No. 5, as shown on the map of the New Mexico Town Company addition to the town of Albuquerque, situate on the street known as 'Railroad Avenue,' and to execute, acknowledge, and deliver to the purchaser thereof a warranty deed with full convenants therefor." This power of attorney was duly recorded in Bernalillo county. On the 28th day of December, 1883, Perfecto Armijo and wife, Jesus Armijo and wife, Mariano Armijo and wife, Elias H. Armijo, and John Symington and wife, by Elias H. Armijo, as their attorney in fact, conveyed to A. M. Coddington, by warranty deed, with full convenants for title, the whole of lot 17 in block 15, which deed was duly recorded in Bernalillo county; and on January 2, 1884, A. M. Coddington and wife conveyed the same property to Conrad Schenfield. Schenfield entered into possession of the entire property, and remained in possession thereof, by himself or his tenants, until his death, which occurred on the 25th day of June, 1888. By his last will and testament he devised lot 17 in block 15 to James A. Williamson, and the said last will and testament was admitted to probate by the probate court of Bernalillo on the 5th day of July, 1888. Williamson afterwards received deeds from all the heirs at law of Conrad Schenfield, and it is admitted that whatever title Schenfield acquired under his deed from Coddington and wife passed to Williamson. The record shows affirmatively that Williamson entered into possession of the premises under the will of Schenfield, deeds from Schenfield's heirs, and claimed by no other title. On December 16, 1890, Williamson conveyed to plaintiff in error, Neher, who continued in possession at the time of the institution of this suit. On August 28, 1896, Ambrosio Armijo, Dolores Armijo De Borradaile, and John Borradaile, her husband, and Anita Armijo, an infant, by her mother and guardian, begun this suit in ejectment in the district court of Bernalillo county against George K. Neher for the recovery of the locus in quo. The defendant appeared and answered, interposing the general issue, and also a special plea that the alleged cause of action did not accrue within 10 years prior to said suit. Thereupon the plaintiffs joined issue as to the first plea, and demurred to the second. Afterwards plaintiffs moved the court to allow them to amend by striking out the names of Dolores Armijo De Borradaile and John Borradaile, and that they be allowed to prosecute the suit in the name of the remaining plaintiffs. The motion was allowed, the defendant not objecting thereto. Thereupon the plaintiffs withdrew the demurrer to defendant's second plea, and the plaintiffs Ambrosio Armijo and Anita Armijo filed their replication, taking issue on the first plea, and answering defendant's second plea by alleging infancy of Anita, and within three years after Ambrosio Armijo became 21 years of age. To the second replication of plaintiffs to the second plea of defendant the defendant interposed his rejoinder, alleging that said alleged cause of action did not first accrue to plaintiffs, but to their ancestor, Ambrosio Armijo. Plaintiffs interposed a demurrer to this rejoinder, which was overruled by the court, and thereupon plaintiffs filed their sur rejoinder, and therein denied that said cause of action first accrued to Ambrosio Armijo, the father of the plaintiffs, but, on the contrary, alleged that Ambrosio Armijo died seised and possessed of an estate in fee simple in said premises. Issue was thereupon joined, and thus the pleadings stood at the time of trial, April 3, 1897. After a verdict and judgment in favor of Ambrosio Armijo and Anita Armijo for an undivided two-tenths of the locus in quo and damages, defendant brought the cause into this court by writ of error, and makes the following assignments of error: "(1) The court erred in refusing to grant defendant's motion for a verdict at the close of plaintiffs' evidence in chief; (2) the court erred in refusing defendant's motion for verdict at the close of the case; (3) the court erred in overruling defendant's motion for a new trial in this cause; (4) the court erred in overruling defendant's motion in arrest of judgment; (5) the court erred in ruling that the will of Ambrosio Armijo, deceased, required an election of the widow; (6) the court erred in ruling that said widow did elect to take under said will; (7) the court erred in ruling that said will and the election of said widow devested her of the legal title to the premises in question, and vested the same in the heirs of Ambrosio Armijo, deceased." We will discuss the questions raised by the foregoing assignments of error in their logical order.

Alonso B. McMillen and Childers & Dobson, for plaintiff in error.

Niell B. Field, for defendants in error.

CRUMPACKER, J. (after stating the facts).

1. Defendant insists that these plaintiffs, as tenants...

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