Prude v. Lewis

• Decision Date: 24 July 1967
• Docket Number: No. 8205,8205
• Parties: Johnnie Lee PRUDE, Plaintiff-Appellant, v. Carl LEWIS, Anna Belle Lewis, and Donald B. Lewis, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 753

430 P.2d 753

78 N.M. 256

Johnnie Lee PRUDE, Plaintiff-Appellant, v. Carl LEWIS, Anna Belle Lewis, and Donald B. Lewis Defendants-Appellees.

No. 8205.

Supreme Court of New Mexico.

July 24, 1967.

Bigbee & Byrd, Richard N. Carpenter, Santa Fe, for appellant

Schauer & Stiff, Roswell, for appellees.

OPINION

OMAN, Judge, Court of Appeals.

This suit was brought pursuant to the provisions of §§ 22--13--1 to 22--13--8, N.M.S.A.1953, whereby plaintiffs sought partition, or partition sale, of 198.21 acres of land, which he claimed was owned by him and the defendants as tenants in common. He claimed an undivided one-half interest in these lands.

The defendants, a husband and wife and their son, admitted that the record title to the lands showed the parties to be tenants in common, and showed that the plaintiff owned an undivided one-half interest therein. However, they alleged and contended that these lands were the subject of an oral partition agreement, whereby defendants were to have the sole and exclusive use of the property for ranching operations, and that plaintiff and his father, whose interest the plaintiff subsequently acquired, were to hold the legal title to a one-half undivided interest therein solely for the purpose of meeting the requirements of the United States Forest Service in qualifying for a Preference Right Permit to graze livestock on Forest Service lands. They sought a dismissal of the complaint, or, in the alternative and in the event the court found plaintiff to have an interest in the lands, an equitable division thereof, with the improvements thereon being awarded to defendants.

Prior to October 16, 1946, these fee lands of approximately 198 acres were owned by J. C. Prude, the defendants' predecessor in title, and who owned a one-half undivided interest therein, and by L. L. Prude and his son, Johnnie Lee Prude, the plaintiff in this cause, who owned the other one-half undivided interest therein. J. C. Prude and L. L. Prude were brothers, and the defendant, Anna Belle Lewis, is the daughter of J. C. Prude.

These fee lands served as what is referred to by the United States Forest Service as 'commensurate acreage' for Forest Service 'Preference Right Permits.' Under these permits, J. C. Prude was authorized to graze 381 head of cattle and L. L. Prude and his son were authorized to graze 381 head of cattle on Forest Service lands. These fee lands and the Forest Service lands together were referred to as the Prude Ranch and totaled 39,462 acres, or approximately 62 sections. On October 16, 1946, the defendants acquired the entire interest of J. C. Prude in the Prude Ranch, including all his interest in the fee lands, the Forest Service permits, and all ranch improvements.

Immediately after defendants acquired the interest of J. C. Prude in the ranch, the parties orally agreed to a division of the ranch into a north portion and a south portion. The north portion consisted of approximately 17,475 acres, and included the 198.21 acres of fee lands on which there were a permanent watering and headquarter improvements, consisting of two houses, corrals, etc. The south portion consisted of 21,988 acres, on which were located the other permanent watering on the ranch and headquarter improvements, consisting of two houses, corrals, etc. The headquarters on the north portion had been occupied by J. C. Prude, and the headquarters on the south portion had been occupied by the plaintiff and his father. By their oral agreement the plaintiff and his father took the south portion and the defendants took the north portion. A division fence was erected between them. The Forest Service was fully advised of this division and issued a grazing permit to the plaintiff and his father and a grazing permit to the defendants.

The parties continued to occupy and use their respective portions of the Prude Ranch, so divided by the fence, for more than 19 years prior to the filing of this suit on March 20, 1965. Shortly before filing the suit, the plaintiff had acquired some other fee lands which he could now use as commensurate acreage to hold his Forest Service permit. The minimum commensurate acreage required to hold either permit is 80 acres. During the intervening years the defendants had improved both of the houses on their portion of the ranch by enlarging the same, had shared with the Forest Service in the cost of drilling a new water well, and had constructed some pens for use in sheep ranching. Mr. Lewis estimated the cost of these improvements at $9,000.

The trial court also found:

'23. Any partition of the lands involved in this action must be made in keeping with the rights of the parties so that the Defendants can be awarded all of the improvements and waterings at the ranch headquarters, and 80 acres of said lands. If the lands are of such character, disregarding the improvements and the waterings on said lands, so that they can be divided in kind, giving to the Defendants all of said ranch headquarters improvements and the waterings, it will be equitable for this to be accomplished.

'24. That a sale of the lands involved in this suit would deprive Defendants of benefits accruing to Defendants under the division agreement referred to hereinabove, and would further be contrary to the implied agreement of the parties not to do so.'

The trial court concluded, among other things:

'2. That the Defendants should be decreed to be the owners of all physical improvements, permanent springs and waterings on the lands involved herein.

'4. That the Plaintiff is estopped from bringing an action for partition in kind, unless a division of the lands involved herein can be made so that the land containing the improvements, springs and waterings should be set apart to the Defendants.

'5. That under the circumstances of this case, a Court of equity should not lend its aid to the Plaintiff in attempting to force a sale of the lands involved.

'6. A Judgment may be presented in accordance with this Decision and providing for the appointment of commissioners to ascertain and report whether a partition may be made of said lands in keeping with this Decision and in accordance with law.'

These findings and conclusions are attacked and will hereinafter be discussed. The judgment and decree adopted the court's findings of fact and conclusions of law, and made the same a part thereof; appointed commissioners to ascertain and report unto the court whether a partition of the premises may be made in keeping with the decision of the court, and in accordance with the law; provided that plaintiff should be considered by the commissioners as one party and the defendants, jointly, as one party; and ordered the commissioners to go upon the premises and make partition thereof, in accordance with the decree of the court, as to the rights and interests of the parties (including improvements and waterings), assigning to each party his share by metes and bounds, if the same can be done without manifest prejudice to the parties.

The plaintiff has appealed from the judgment and decree, and relies upon four points for reversal.

The first claimed error is the refusal of the trial court to permit plaintiff to amend his pleadings to assert, as against the claimed oral partition, the defense of the statute of frauds. Plaintiff cites the rule applicable to the amendment of pleadings and many cases and other authorities construing the applicability of this rule. He contends, and correctly so, that leave to amend should be freely given when justice so requires. He concedes that the matter of permitting an amendment rests in the sound discretion of the trial court, but he insists the trial court abused this discretion in denying his proposed amendment.

The defendants counter by asserting the plaintiff should have pleaded the defense before proceeding to trial, and that, in any event, it was within the sound discretion of the trial court to grant or deny the request. They further contend that, in all events, the court, by invoking equitable estoppel, eliminated all defenses, including the protection afforded by the statute of frauds.

Both contentions overlook the fact that the court found against an oral partition of the only lands involved in this case. Had he found these lands had been partitioned, the result would have been the dismissal of defendants' complaint. As above shown, the court found the fee lands here in question had not been partitioned pursuant to the oral agreement, although they were a part of the subject matter of the agreement, and he thereupon decreed that partition should be accomplished. He did make a determination of certain equities which he ruled should be considered in making the partition, and, as shown above, these related to the rights of defendants to the permanent watering and other improvements on the portion of the ranch they had received and occupied for more than 19 years. He also determined that a partition sale should not be made.

A reversal of the court's refusal to allow the requested amendment, even if we were inclined to feel that the court erred in so doing, would accomplish nothing. An appellate court will not correct errors which have not affected the ultimate decision of the trial court. Tevis v. McCrary, 75 N.M. 165, 402 P.2d 150 (1965); Wieneke v. Chalmers, 73 N.M. 8, 385 P.2d 65 (1963); Wiggs v. City of Albuquerque, 57 N.M. 770, 263 P.2d 963 (1953). Furthermore, the only oral agreement here involved had been consummated, or, to state it otherwise, the accomplishment thereof had been entered upon, more than 19 years prior to the filing of the suit. The statute of frauds is no defense to an oral agreement which has been so consummated. Restatement, Contracts § 196 (1932); Ebert v. Wood, 1 Binn. (Pa.) 216, 218 (1807); Calhoun v. Hays, 8 Watts & S. (Pa.) 127, 132 (1844); Mellon v. Reed, 114 Pa. 647, 653, 8 A. 227, 229 (1887); see Hazen v. Barnett, 50 Mo. 506 (1872); Sutton v. Porter,...