Otero v. Dietz

• Citation: 39 N.M. 1,37 P.2d 1110
• Decision Date: 20 November 1934
• Docket Number: No. 3959.,3959.
• Parties: OTEROv.DIETZ et al.
• Court: Supreme Court of New Mexico

39 N.M. 1

37 P.2d 1110

OTERO

v.DIETZ et al.

No. 3959.

Supreme Court of New Mexico.

Nov. 20, 1934.

Appeal from District Court, Sandoval County; Harry L. Patton, Judge.

Ejectment by Candelaria Otero against Neill B. Field, wherein Barbara J. Dietz, executrix of the estate of Neill B. Field, deceased, and others were substituted as defendants. From a judgment for plaintiff, defendants appeal.

Affirmed.

Judgment lien did not become dormant after five years where execution was issued four times within such period, though order of revivor was subsequently procured, and hence purchaser at sale on execution thereunder less than seven years after judgment was entitled to priority over purchaser at special master's sale under judgment which was recovered and docketed subsequently. Comp.St.1929, §§ 76-110, 76-117, 76-118, 83-102.

J. S. Vaught, of Albuquerque, for appellants.

Hanna & Wilson, of Albuquerque, for appellee.

SADLER, Justice.

On October 17, 1924, Albert Simms, as trustee, recovered judgment before the district court of Bernalillo county against Alfredo J. Otero and Moses Abousleman upon a certain obligation which Abousleman had signed as surety for Otero. Transcript of the judgment was docketed in Sandoval county, where Otero owned real estate, on October 20, 1924. On March 7, 1925, Abousleman made settlement with Simms, the trustee, and took an assignment of the judgment. Thereafter, and on July 6, 1928, Abousleman for a recited consideration of $1,800 assigned the judgment to Candelaria Otero, wife of Alfredo Otero, “as her sole and separate property.” Executions issued on this judgment on October 17, 1924, May 29, 1925, June 20, 1927, and June 19, 1928, antedating a suit to revive same begun by Candelaria Otero before the district court of Bernalillo county on September 11, 1930.

Judgment of revivor was entered November 19, 1930. Thereafter and on January 5, 1931, under execution issued out of the original cause and on the original judgment, certain real estate involved herein was sold to Candelaria Otero and the deed to her from the sheriff of Sandoval county issued pursuant to such sale is the basis of her title relied upon as plaintiff in ejectment, form of the present action.

So much for the appellee's title and the manner of its origin.

On November 19, 1924, before the district court of Sandoval county, the late Neill B. Field recovered judgment against the same Alfredo J. Otero heretofore mentioned, docketing a transcript thereof with the county clerk of said county on January 25, 1925. Alfredo J. Otero, having conveyed the property involved to Candelaria Otero, his wife, on June 1, 1927, thereafter and on September 23, 1927, the said Neill B. Field began suit before the district court of Sandoval county to set aside such conveyance as a cloud upon the title to said property preventing the satisfaction of his judgment lien, and prayed for the foreclosure of his lien and a sale of the property in satisfaction thereof. The then defendants, Alfredo J. Otero and Candelaria Otero, following an order of the trial court sustaining plaintiff's demurrer to their answer which urged certain defenses, refused to plead further and, upon entry of judgment for the then plaintiff, Field, brought the case to this court for review. An affirmance resulted. See Field v. Otero, 35 N. M. 68, 290 P. 1015.

After mandate to the court below such proceedings were had as resulted in the judgment creditor, Field, becoming purchaser of the property at a special master's sale ordered for the purpose of satisfying the Field judgment. The special master's deed, issued July 20, 1931, pursuant to such sale, thus becomes the basis of title claimed by the late Neill B. Field during his life-time and asserted by his executrix and the trustees under his will since his death.

Mr. Field, as purchaser, entered into possession of the property acquired and so continued at the time of trial in July, 1933. On February 18, 1932, Candelaria Otero, as plaintiff, commenced suit in ejectment against him before the district court of Sandoval county, seeking possession of the land in question and damages for its detention. The defendant having died pending suit, the cause was revived as against the executrix and trustees under his last will and testament. In a trial before the court without a jury, a judgment in plaintiff's favor for restitution to the property and damages in the sum of $800 resulted. This appeal by the executrix and trustees followed.

[1][2] As we view the matter, but one question is before us for determination, and that the priority of the respective judgment liens under the foregoing state of facts; for while the defendants assign and argue error by the trial court in permitting plaintiff's subrogation to the Simms' judgment and in the award of damages for detention of the land, we should have to go outside the record to ascertain that the first question was ever presented or ruled upon by the trial court. As to the award of damages, it could scarcely be argued, if available, that there is not substantial evidence to support the finding upon which the award is based. But the finding is in the record without exception and for that reason the question of sufficiency of the evidence to sustain it is not reviewable.

[3] So we turn to the decisive question, viz., priority of judgment liens. As appears, the Simms' judgment upon which plaintiff relies has priority both of recovery and of docketing with the county clerk of Sandoval county, situs of the land in controversy. Execution thereon issued, not once but four times within five years following its recovery. We are hence brought immediately to a consideration of pertinent statutory provisions. They are as follows:

“Any money judgment rendered in the supreme or district court shall be docketed by the clerk of the court in a book kept for the purpose, and shall be a lien on the real estate of the judgment debtor from the date of the filing of a transcript of the docket of such judgment in such book in the office of the county clerk of the county in which such real estate is situate.” Comp. St. 1929, § 76-110.

“It shall not be necessary to bring proceedings in any court to revive a judgment having been already obtained before a court of competent jurisdiction in this state, except in cases where such judgment had been rendered for a period of five years or more next preceding the issue of final process for the enforcement of the same.” Comp. St. 1929, § 76-117.

“An execution may issue at any time, on behalf of any one interested in such judgment referred to in the above section, within five years after the rendition thereof, and without the necessity of bringing an action to revive the same.” Comp. St. 1929, § 76-118.

“Actions founded upon any judgment of any court of the state of New Mexico may be brought within seven years from and after the rendition of such judgment, and not afterward. ***” Comp. St. 1929, § 83-102.

At common law execution might issue on a money judgment at any time within a year and a day following its rendition. Browne & Manzanares Co. v. Chavez, 9 N. M. 316, 54 P. 234; Id., 181 U. S. 68, 21 S. Ct. 514, 45 L. Ed. 752. If not so issued, the judgment became dormant. If so issued, it did not become dormant, and “on the contrary, executions might issue for its enforcement during its life of 20 years.” Browne v. Chavez, supra. But the enactment of Laws 1887, c. 61 (Comp. St. 1929 §§ 76-117 and 76-118), extended the time within which executions might issue without revivor to five years. In Crowell v. Kopp, 26 N. M. 146, 189 P. 652, 653, we said: “Sections 3085 and 3086 come from chapter 61 Laws 1887. Previous to the passage of this chapter we had no statute enlarging the time beyond the common-law year and a day within which execution might issue on a judgment. The chapter merely enlarged the time within which execution might issue without first reviving the judgment.” In the same case we held that the “final process” intended by the use of that phrase in section 76-117 is the “execution” mentioned in section 76-118.

Prior to the passage of Laws 1891, c. 67, § 1 (Comp. St. 1929, § 76-110), the mere rendition of a money judgment, as at common law, created no lien. Moore v. Davey, 1 N. M. 303; Crenshaw v. Delgado, 1 N. M. 376; Kaseman v. Mapel, 26 N. M. 639, 195 P. 799. As early as 1859, Mr. Chief Justice Benedict writing for the Territorial Supreme Court in Crenshaw v. Delgado, supra, deplored the...