Prater v. Holloway.

• Decision Date: 11 December 1945
• Docket Number: No. 4882.,4882.
• Citation: 164 P.2d 378,49 N.M. 353
• Parties: PRATERv.HOLLOWAY.
• Court: New Mexico Supreme Court

49 N.M. 353

164 P.2d 378

PRATER

v.HOLLOWAY.

No. 4882.

Supreme Court of New Mexico.

Dec. 11, 1945.

Appeal from District Court, Lea County; James B. McGhee, Judge.

Action of ejectment by L. M. Prater against Mrs. C. L. Holloway. From a judgment in favor of plaintiff, defendant appeals and plaintiff moves to dismiss the appeal.

Cause remanded with directions.

Recitals in judgment in action of ejectment tried by court without a jury did not constitute such a decision, consisting of findings of fact and conclusions of law, as was required by Rules of Civil Procedure but ends of justice required that cause be remanded for entry of proper findings of fact and conclusions of law. 1941 Comp. § 19-101, rule 52(B) (a) (1-4, 7).

Carl H. Gilbert, of Santa Fe, for appellant.

Frazier & Quantius, of Roswell, for appellee.

MABRY, Chief Justice.

This is an appeal from a final judgment of the District Court of Lea County resulting from an action of ejectment brought by appellee Prater against appellant Holloway. The land involved was part of a large tract owned originally by one E. H. Byers and wife.

The appellee claimed the right to the possession of the property under a lease from Mr. and Mrs. Byers to J. R. and J. E. Overstreet, executed in 1937, having an original term which expired in March, 1938, and containing an option to the lessees to renew the term from year to year for ten additional years. The right to possession was claimed by appellee as of September 10, 1943. It was the appellee's contention that the lease had been transferred by various assignments and that he had finally succeeded to the interest of the lessees on June 16, 1943.

Appellant claimed an equitable title to the property through purchase from subdividers with whom Mr. and Mrs. Byers had entered into a contract in 1930, duly recorded in that year, under which the subdividers agreed to subdivide the tract and sell lots to the public, the grantors agreeing to issue deeds to the purchasers upon being paid by the subdividers seventy-five per cent of the purchase price. The evidence that appellant had purchased and fully paid for the lots in 1930 was not controverted. It is conceded that she had never received a deed.

The trial court held that appellee had acquired the lease under which he claimed without notice of appellant's equity or claim and that appellee's rights were, therefore, superior to those of the appellant. There was, however, no evidence, appellant claims, that appellee had either paid a valuable consideration for the assignment to him of the lease or had ever paid any rental for the property.

It is claimed that the evidence of appellee's chain of title to the leasehold estate from the original lessees was ‘extremely sketchy’; and, as to a portion of the assignments necessary to complete that chain of title there was no evidence whatever as to any written instrument, contends appellant, who urges that the evidence of appellee's complete chain of title is insufficient in law, and that there is no evidence that appellant had actual possession of the property claimed at the time the ejectment suit was filed, all presenting interesting questions if we were called upon to consider the case on its merits.

Appellee contends that the trial court made no decision, findings of fact, or conclusions of law, as required by our Rules of Civil Procedure, 1941 Comp., Sec. 19-101(52)(B)(a)(6); and, moreover, that since appellant made no specific requests therefor, and neither took exception or made objection to the judgment as entered, under this rule, she waived all findings or conclusions to be made by the court, and is not now in a position to challenge the judgment entered.

We inquire first into the contention that appellant is not in position under the state of the record to challenge the judgment. It is clear that neither party requested findings of fact or conclusions of law and appellant in no way excepted to the judgment entered by the court. This procedural question was raised by appellee on motion to dismiss the appeal, which question we reserved for consideration until the whole appeal could be considered. In Carlisle v. Walker, 47 N.M. 83, 136 P.2d 479, we said, in construing this rule, which was then Rule 52, par. 4, (6), that where no specific findings of fact are requested or made, this court will not review evidence to see whether it supports general findings, or judgment. Under this rule, contends appellant, by failing to make general written requests for specific findings of fact or conclusions of law, or to tender findings of fact or conclusions of law, appellee thereby waived such specific findings of fact and conclusions of law.

In the single document entitled ‘Judgment’, in the case at bar, the trial court, as a preface and preliminary thereto recited:

‘On this the 14th day of June, 1944, this cause came on to be heard before the Court, a jury having been waived, and the parties announcing ready for trial,

‘The Court, after hearing the evidence of the interested parties, and...