Pankey v. Ortiz

• Decision Date: 14 January 1921
• Docket Number: 2146.
• Parties: PANKEY v. ORTIZ ET AL.
• Court: New Mexico Supreme Court

195 P. 906

26 N.M. 575, 1921 -NMSC- 007

PANKEY
v.
ORTIZ ET AL.

No. 2146.

Supreme Court of New Mexico

January 14, 1921

Syllabus by the Court.

In a suit to quiet title, where the complaint alleges the defendants are in possession of the land title to which is sought to be quieted, that they are cultivating it and have fenced it, and the answer sets up title, possession, and the right to possession in the defendants, the plaintiff has a plain, adequate, and complete remedy at law in ejectment, and the suit to quiet title cannot be maintained.

In a suit to quiet title, where the complaint alleges defendants are in possession of the land title to which is sought to be quieted, that they are cultivating it and have fenced it, and the answer sets up title, possession, and the right to possession in the defendants, they, the defendants, have a constitutional right to trial by jury, and the court is without jurisdiction to try the case as a suit in equity.

A court of equity cannot, under its general powers, take jurisdiction in a suit to quiet title brought by one plaintiff against numerous defendants to prevent multiplicity of suits, when the defendants have nothing in common except their source of color of title, and each defendant has a distinct, different, and separate defense.

Where plaintiffs in a partition suit, or a suit to quiet title, have knowledge or the means of knowledge as to persons in actual adverse possession of the lands to be partitioned, or the title to which is sought to be quieted, such persons cannot be bound by a decree in the partition suit or suit to quiet title by service by publication under the name of "unknown owners." They are entitled to personal service under such circumstances. Priest et al. v. Las Vegas, 16 N.M. 692, 120 P. 894, and La Cueva Ranch Co. v. Rodriguez, 17 N.M. 256, 134 P. 228, followed.

Appeal from District Court, Santa Fé County; Abbott, Judge.

Suit by Benjamin F. Pankey against Antonio Ortiz and others. Decree for plaintiff, and defendants appeal. Reversed.

F. W. Clancy, of Santa Fé, for appellants.

Catron & Catron, of Santa Fé, for appellee.

RAYNOLDS, J.

This is a suit in equity begun May 1, 1909, by the plaintiff, Pankey, to quiet title and to obtain an injunction against the defendants restraining them from trespassing on a tract of land known as the Cadillal, alleged to be within the Eaton or San Cristobal grant, of which plaintiff claims to be the owner. The complaint sets up that the defendants during the year 1908 erected a fence upon the Cadillal tract and are now cultivating the soil of the said tract without permission of the plaintiff and are preventing the plaintiff from farming the same, that defendants intend to continue cultivating the soil of said tract and to keep the plaintiff out of possession of his said farming land, and prays that defendants be enjoined and that title be quieted in plaintiff. A temporary injunction was issued, but was afterwards dissolved upon motion of defendants supported by affidavits. Thereafter a demurrer to the complaint was filed which raises the jurisdictional question that the complaint does not show that plaintiff or any one under whom he claimed has ever had possession of the lands within the Cadillal tract, but does show that defendants are in actual possession of the land, and that the plaintiff is not entitled to any equitable relief until he establishes his title by an action at law. The demurrer was overruled by the court, and the action is assigned as error.

The defendants then filed an answer alleging [195 P. 907] that the Cadillal tract is outside the lands of the Eaton grant, lying to the west thereof, and avers that the fence mentioned in the complaint was not erected in 1908, as stated in complaint, but at some time in the year 1884, shortly after the enactment of a statute which became a law April 2, 1884. The answer further alleges that the fence has been kept up, maintained, and repaired down to the present time. The answer admits that the defendants are engaged in cultivating the soil of portions of the Cadillal without permission of the plaintiff, and that they intend, as they have the lawful right to do, to continue such cultivating of the land. The answer further alleges that each of the defendants is the owner of one or more pieces within the Cadillal of which he and his ancestors and predecessors in title have had open, notorious, exclusive, adverse possession, hostile to the world ever since the year 1846, steadily and continuously using the same from year to year for agricultural and grazing purposes, and that their said adverse possession was an actual and visible appropriation of land commenced and continued in good faith under color of title and claim of right inconsistent with and hostile to the claim of any other person, of which fact plaintiff had notice and knowledge at or before the time of his purchase of any interest in the said Eaton grant, and further that the chain of title of each defendant is different and independent from the chain of title to the pieces of land belonging to any of the other defendants, and that each is entitled to a separate trial by jury before he can be lawfully dispossessed of his land within the Cadillal tract.

The complaint having set up a deraignment of title through a judgment and decree of the district court of Bernalillo county entered on November 2, 1903, which adjudicated the title of the Eaton grant in the said Thomas B. Catron, Saron N. Laughlin, and other minor holders, the answer alleges that said decree is without force or effect so far as these defendants are concerned, as the allegations of the complaint do not in any way connect these defendants or any of them with the said cause, and they further say that they were not, nor were any of them, parties to said cause. To the answer of the defendants plaintiff filed a reply alleging that in 1903 said lands were sold by partition decree as originally pleaded in the complaint, and that the defendants and their ancestors were designated as unknown heirs of two named persons deceased, as the unknown owners of the Eaton grant, and unknown claimants of interest adverse to Thomas B. Catron and Nicholas Pino, who were the plaintiffs in the partition suit. Defendants moved to strike out portions of the reply, which was denied by the court, and that action is assigned as error.

On April 20, 1915, there was filed by the defendants a protest against the trial of the cause in its present form, as such trial would deprive them of their right to trial by jury. When the case came on for trial before the court, the defendants renewed their objection to any trial by the court on the ground that the case involved the recovery of possession of real estate, which the pleadings showed to be in the possession of the defendants. This objection was disregarded by the court.

At the conclusion of the taking of testimony defendants moved the court to dismiss the case on the ground that the evidence showed that it was instituted for the purpose of depriving the defendants of the possession and of rights of possession to different portions of the Cadillal, as to which each defendant has a right to a trial by jury. The record does not show any distinct ruling on this motion, but the court evidently ignored it.

Defendants applied to the court to make findings of fact and conclusions of law, which application was denied. Defendants then presented objections to the final decree proposed by the plaintiff, and these objections were overruled. The court then entered a final decree by which the title of the plaintiff to the Cadillal was established and quieted against the adverse claim of defendants. From this decree the defendants have appealed to this court, and have assigned, among others, the following errors:

(1) The district court erred in disregarding the protest of defendants against any trial of the cause in its present form by the court, and in forcing defendants to trial, thereby depriving them and each of them of a trial by jury, to which they were each entitled.

(2) The district court erred in disregarding the objection of the defendants to any trial by the court made just before the beginning of said trial, claiming that each defendant was entitled to his trial by jury in this cause, which involves the recovery of the possession of real estate which the pleadings show to be in the possession of the defendants.

(3) The district court erred in disregarding the motion by defendants, made after the conclusion of the taking of testimony and before any findings or decree were made by the court, to dismiss the said cause for the reason that the evidence showed that it was instituted for the purpose of depriving defendants and each one of them of the possession, and of his right to the possession of different portions of the tract known as the Cadillal, each of said defendants holding possession of different portions of said tract by a different chain of title from any of the other defendants, and therefore each defendant had a constitutional right to a separate and independent trial by jury before his [195 P. 908] right to the possession of the land could be determined.

(4) The district court erred in denying the motion of defendants to strike out from the evidence parts of the record in the case of Catron et al. v. Laughlin et al. for reasons set forth in said motion.

The complaint alleges that the defendants are in possession of the land title to which is sought to be quieted; that they have fenced it and are cultivating it. The defendants demurred to the complaint, and after the demurrer was overruled and they had answered claiming title and right to possession, they objected to the trial of the case on the ground that it was an attempt to deprive them of their possession and to try their title by a suit in equity, that the action was properly one at...