Pentecost v. Hudson

• Decision Date: 13 January 1953
• Docket Number: No. 5391,5391
• Citation: 252 P.2d 511,1953 NMSC 1,57 N.M. 7
• Parties: PENTECOST v. HUDSON et al.
• Court: New Mexico Supreme Court

Page 511

252 P.2d 511

57 N.M. 7

PENTECOST v. HUDSON et al.

No. 5391.

Supreme Court of New Mexico.

Jan. 13, 1953.

Donald S. Bush, Artesia, for appellants.

Neil B. Watson, Artesia, for appellee.

LUJAN, Justice.

This suit was instituted in the District Court of Eddy County by James M. Pentecost against Mildred Crane Hudson seeking to establish an unrecorded, undivided royalty interest in Lot 1 (NE 1/4 NE 1/4) of Section 2, Township 18 South, Range 27 East, under an oil and gas lease executed by the State of New Mexico to Fred Brainard.

The plaintiff's complaint among other things alleged in substance that on October 14, 1941, Fred Brainard executed and delivered to plaintiff an assignment of an undivided royalty interest equal to 1% of 7/8 of all the oil and gas produced, saved and marketed; that a similar assignment of an identical interest was made by the said Fred Brainard to George E. Nixon; that through inadvertence the plaintiff did not place said assignment of record with the County Clerk of Eddy County, New Mexico, but handed the same to George E. Nixon, to be placed by him in his safe deposit box for safe keeping; that on April 12, 1945, acting on representations of either George E. Nixon or William Hudson, or both, said Hudson being then the owner of the royalty interest of both the plaintiff and Nixon, the firm of Archer and Jones was induced, for valuable considerations, to assign a royalty interest totalling 2% of 7/8 to defendant Mildred Crane Hudson, the wife of William Hudson; that said assignment was made without the knowledge or consent of the plaintiff and that all the parties, or their agents, had actual notice of the royalty interest of the plaintiff in and to said lease; that William Hudson paid to George E. Nixon the sum of $100 for the royalty interest of both the plaintiff and Nixon; that plaintiff had never authorized Nixon to act for him in the sale of said royalty interest and did not receive from George E. Nixon any portion of the sum so paid by Hudson.

The answer of the defendant Mildred Crane Hudson admitted that she had actual notice of the royalty interest of plaintiff and set up the purchase of the two 1% of 7/8 royalty interest through George E. Nixon; that the plaintiff received the consideration for said royalty interest on June 24, 1943. It denied the claims of ownership by the plaintiff. It further set up the defense of estoppel by laches and, by way of cross claim, brought in Myrtle May Pentecost as third party defendant and asked that her title to the royalty interest be quieted. The plaintiff replied by alleging the actual notice of the claim by him.

Upon the issues so framed the cause was tried to the court without a jury which resulted in the dismissal of the plaintiff's complaint for his failure to establish his case and his failure to sustain the burden of proof and plaintiff appealed.

At the conclusion of all of the testimony, among other things, the court made the following observation:

'* * * In response to your objections on the ground of estoppel, the estoppel is not the motivating factor in arriving at the decision that was made in the case, Mr. Bush. The motivating factor then was and now is that I felt and feel that the plaintiff was unable to establish its cause of action or failed to establish its cause of action. Personally, I place little reliance in the defense of estoppel and based upon laches in this lawsuit. I think it is purely a question of fact as to the establishment of the complaint and I feel that it wasn't established. Now, that is the basis of the decision, * * *'

In 20 Am.Jur., Evidence, Section 135, p. 138, we find the following language used by the author:

'The fundamental principle is that the burden of proof in any cause rests upon the party who, as determined by the pleadings or the nature of the case, asserts the affirmative of an issue and remains there until the termination of the action. It lies upon the person who will be defeated as to either a particular issue or the entire case, if no evidence relating thereto is given on either side. In other words, one alleging a fact which is denied has the burden of establishing it. The burden is on a defendant to establish each material allegation of his rejoinders, where such a pleading is allowable. Unless the party asserting the affirmative of an issue sustains the burden of proof of that issue by a preponderance of the evidence, he must fail.'

We are thus confronted with the settled rule that he who affirms must prove, and when whole of evidence on issue involved leaves case in equipoise, party affirming must fail. See Cunningham v. Springer, 13 N.M. 259, 82 P. 232.

In re Miller's Estate, 300 Mich. 703, 2 N.W.2d 888, 889, the court said:

'Where plaintiff, due to lack of proof, does not make out his case, the trial court should so hold.'

And in Navajo Live Stock & Trading Co. v. Gallup State Bank, 26 N.M. 153, 189 P. 1108, 1111, we said:

'Whoever has the affirmative of the issue, as determined by the pleadings, or, where there...