Primus v. Clark.

• Decision Date: 20 April 1944
• Docket Number: No. 4768.,4768.
• Citation: 48 N.M. 240,149 P.2d 535
• Parties: PRIMUSv.CLARK.
• Court: New Mexico Supreme Court

48 N.M. 240

149 P.2d 535

PRIMUS

v.CLARK.

No. 4768.

Supreme Court of New Mexico.

April 20, 1944.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Suit by Margery Hall Clark Primus against Allan B. Clark to cancel a deed and a contract whereby plaintiff conveyed certain community property and for division of the community property of the parties who had been husband and wife. From a judgment, plaintiff appeals.

Reversed and remanded with instructions.

Where only possible defense to suit to cancel deed and settlement agreement which was void for want of consideration, whereby wife had conveyed community property to husband prior to divorce, was limitations or laches, decree in favor of husband was reversed with instructions that trial court should find whether husband at time of execution of deed and agreement had fraudulent intent not to perform, and, if so, the date when wife discovered such fraud. 1941 Comp. §§ 27-104, 27-106, 65-206.

Henry J. Hughes, of Santa Fe, for appellant.

George Remley, of Santa Fe, for appellee.

BRICE, Justice.

This suit was brought by plaintiff (appellant) to cancel a deed executed by her, conveying to defendant certain community real property, and for a division of the community property of the parties, who had been husband and wife.

The facts found by the trial court, material to a decision, are substantially as follows:

The plaintiff and defendant were married on January 14, 1919, and divorced on June 23, 1936. All of their property belonged to the community, and consisted of the following:

1. Real estate known as the “Jacona Ranch” situated near Santa Fe, New Mexico, of the value of between $35,000 and $45,000, the legal title to which was in plaintiff.

2. $1350 cash.

3. The household furniture, furnishings, fittings, draperies, china, silver, linens, rugs, blankets, books and other chattels and goods of art and adornment, and other property unnecessary to mention, all at the Jacona Ranch. There is no specific evidence of its value, but sufficient to satisfy us that it was worth several thousand dollars.

4. Some pieces of sculpture made by defendant, in the hands of eastern art dealers and art galleries for sale.

5. Farming implements, two mules, an auto-truck and a station wagon.

The community debts amounted to six or seven thousand dollars.

The parties became estranged and agreed that they would secure a divorce and divide their property. Thereafter the defendant interviewed his attorney regarding the matter, and suggested to plaintiff that they go to his attorney's office and initiate proceedings for a divorce and make a property settlement. This was followed by two visits to the attorney. The parties, without the aid or interference of attorneys, orally agreed to the following property settlement:

That the cash should be apportioned $1000 to plaintiff and $350 to defendant; that the plaintiff should convey to the defendant the Jacona Ranch subject to all community debts; that if the defendant should thereafter sell the Jacona Ranch or any part thereof he should pay to the plaintiff one-half of the net proceeds of such sale; in the event the defendant should die seized of the ranch prior to the death of plaintiff she should have an undivided one-half interest therein, but if plaintiff should predecease defendant then all her claim or interest in the ranch “should fail.” It was further agreed that the defendant should retain as his own property such of the furnishings and personal property upon the ranch as would permit him to conduct it as what is known as a “Dude Ranch;” that plaintiff should have such items of personal property as the parties should thereafter agree upon.

Pursuant to this agreement, defendant's attorney prepared a deed to convey the real estate from plaintiff to defendant, which she executed, and the parties thereafter executed a written contract, prepared by defendant's attorney, as follows:

“This agreement, Made and entered into this 22nd day of June, A.D. 1936, by and between Allan Clark, party of the first part, and Margery Clark, his wife, party of the second part;

“That, whereas, the party of the first part, by warranty deed, dated this day, is the owner of a certain ranch and improvements, located at Pojoaque, New Mexico, which said property is described in that certain deed recorded in Book 10, of the Records of Deeds of Santa Fe County page 444; and,

“Whereas, the said Allan Clark and Margery Clark are making what is in the nature of a property settlement, prior to their divorce,

“Now, therefore, in consideration of certain cash moneys which have been divided between the parties by their mutual agreement, and for the consideration of One ($1.00) Dollar paid by the said Margery Clark to the said Allan Clark, the receipt of which is hereby acknowledged, the said Allan Clark agrees for this consideration, and for the other considerations hereinabove mentioned, that if at any time in the future he sells the Jacona Ranch, or any part thereof, he will account to the said Margery Clark for one-half (1/2) of the selling price. Both parties understand, and specifically agree, that if in selling the ranch, or any part thereof, only a small down payment is made, then one-half (1/2) of that shall belong to and be the property of the said Margery Clark, and one-half (1/2) of deferred payments made to be credited to her, as hereinafter set out.

“It is understood and agreed, that the minimum value of the entire ranch as it stands at the time of the signing and ensealing of these presents is Eighteen Thousand Dollars ($18,000.00), but if any portion of the acreage were sold the said $18,000.00 would be reduced proportionately.

“It is further understood and agreed, that no lump sum of money is to be paid over to the said Margery Clark, and she and the said Allan Clark in case of a sale as aforesaid, shall be deposited to her credit in some good and solvent bank, with instructions to pay the same over to the said Margery Clark at the rate of One Hundred ($100.00) Dollars per month, and not otherwise.

In the event that the said Allan Clark never sells the Ranch during his lifetime, on his death the said Margery Clark shall be given an undivided one-half interest in the entire ranch.

Should the said Margery Clark predecease Allan Clark, party of the first part herein, then her interest in the said ranch fails.

“Allan B. Clark, Party of the First Part

“Margery Clark, Party of the Second Part.”

It should be stated that the parties had agreed only to the execution of the deed with the expectation that the rights of plaintiff should rest in parol, but upon the insistence of a friend the oral agreement was reduced to writing.

With the exception of the $1000 cash received by the plaintiff she has received a few articles of personal property of negligible value, requested by her and delivered to her by the defendant. The plaintiff had knowledge of the nature, extent and value of the community property and of their indebtedness and of her community property rights under the law. The defendant made no misrepresentations of facts regarding the property, practiced no deceit upon her, exercised no duress, intimidation or undue influence, and the settlement was freely and voluntarily entered into by the plaintiff.

She had no legal advisor, and acted upon her own judgment. The defendant expended some $10,000 to $15,000 on improvements after the ranch was deeded to him, out of his personal earnings, which plaintiff knew he intended to expend and permitted him to do so without notice to him that she thereafter intended to claim a community interest therein.

More than four years elapsed between the execution of the deed and contract mentioned and the filing of plaintiff's complaint in this action, during which time the plaintiff “knew that each and every act of said defendant, both of omission and commission which, in plaintiff's complaint is alleged to be, or to constitute a fraud perpetrated upon her by said defendant, existed or had not been by defendant performed.” On December 1, 1939, the defendant sold a portion of the Jacona Ranch and has failed to pay the plaintiff any part thereof, the amount of which was approximately $4600.

The trial court concluded that in such property settlement “no fraud, actual, presumptive or constructive was perpetrated upon the plaintiff;” that the plaintiff was guilty of laches and is estopped from prosecuting her cause of action; that plaintiff's cause of action was barred by the statute of limitations. This action was brought on May 20, 1941.

We are satisfied that the community estate was of a value in excess of $50,000, of which plaintiff received $1000. She cannot obtain any of the personal property except by mutual agreement. The real estate was conveyed outright, and her interest therein fails unless defendant should predecease her. Assuming that their life expectancies are equal, she may live to own a half interest in the property, but in the meantime the right to its use and the usufructs thereof are in the defendant. The value of such an interest is so precarious that it is negligible. Add to this the fact that the defendant was given outright all the personal property except the $1000 cash paid plaintiff, and that he has kept $4600 received from sale of a part of the ranch land, the whole transaction appears so shocking to the conscience that we are not disposed to let it stand, unless a cancellation of this unconscionable agreement would do violence to legal rights of the defendant.

Transactions between husband and wife are controlled by the following statute:

“Either husband or wife may enter into any engagement or transaction with the other, or with any other person respecting property, which either might, if unmarried; subject, in transactions between themselves, to the general rules of common law which control the actions of persons occupying confidential relations with each...