RUDY v. NEWMAN

• Decision Date: 11 July 1950
• Docket Number: No. 5261,5261
• Citation: 54 N.M. 230,220 P.2d 489
• Parties: RUDY et al. v. NEWMAN.
• Court: New Mexico Supreme Court

54 N.M. 230

220 P.2d 489

RUDY et al.

v.NEWMAN.

No. 5261.

Supreme Court of New Mexico.

July 11, 1950.

[220 P.2d 489, 54 N.M. 231]

Frazier, Quantius & Cusack, Roswell, for appellant.

John F. Russell, Roswell, for appellees.

McGHEE, Justice.

We will refer to the parties as they appeared in the trial court.

On February 25, 1947, the parties entered into a written contract whereby the plaintiffs agreed to purchase a tract of land from the defendant for $2500.00, of which $800.00 was immediately paid and the plaintiffs went into possession of the property. The balance was to be paid in monthly installments of $50.00, plus accrued interest. An abstract of title was submitted by the defendant to the plaintiffs and shortly thereafter the examining attorney made the requirement that the estate of Dovie L. Newman be probated. A supplemental contract was then entered into which provided that the monthly payments would be suspended pending the completion of theprobate proceedings which, it was stated, would require approximately seven months. Actually, the probate proceedings were completed in seven months and eighteen days after the execution of the supplemental contract. Certain minors had an interest in the property which the defendanthad agreed to convey, and it was, therefore, necessary that a court order be secured authorizing the conveyance of their interest.

While the probate proceedings were pending the plaintiffs moved to another state and left the completion and closing of the deal with their attorney George L. Reese, Sr., with whom the defendant and his attorney later dealt.

Upon the completion of the probate proceedings the abstract was ordered brought down to date and tendered to Mr. Reese for examination on November 24, 1947, with the statement that the court order would be promptly secured authorizing the transfer of the interest of the minors, but Mr. Reese stated it would be useless to secure the order as the plaintiffs had already cancelled the deal because the probate proceedings had not been completed within the seven month period allowed. He also stated the plaintiffs wanted the $800 returned to them and that they would not make any more payments.

On September 27th the plaintiff Rudy had written his attorney that he did not want to go on with the deal as he had moved away and wanted the $800 back for use in purchasing a home in his new location.

In December, 1947, the defendant served notice of termination of the contract on the plaintiffs but stated they could reinstate it by making the monthly payment, beginning within thirty days thereafter, but the plaintiffs did not accept the offer, and in the latter part of January, 1948, the defendant took possession of the property and in March, 1948, sold it for $1500.00.

The trial court found that the plaintiffs were not in default, that the defendant had never tendered an abstract to the plaintiffs showing a merchantable, fee-simple title, and that certain children were vested with an interest therein; that the defendant had procured a court order in March, 1948, authorizing the conveyance of the interest of the minors and had actually conveyed said property to another. It gave judgment for the plaintiffs for $800 and denied a recovery on the cross-complaint for damages to the property.

The material evidence in this case is documentary or uncontradicted oral testimony, so that we are not bound by the findings of fact of the trial court as in the ordinary case, but may examine the record and ourselves determine the correctness of the facts found, as well as determine whether the material findings requested by the defendant should have been made. Valdez v. Salazar, 45 N.M. 1, 107 P.2d 862. The facts stated in this opinion are based on undisputed or documentary evidence on the material matters.

The issue submitted to the court by the attorneys for the parties was stated early in the trial by the attorneys as follows:

'Mr. Frazier: (Mr. Russell, I believeyou told me before the trial the only contention you made about the title was the probate proceedings had not been made within the seven months. You have no objection to the title except the probate proceedings?

'Mr. Russell: No, sir.

'Mr. Frazier: The other two things as to the title opinion have been cleared up.

'Mr. Russell: There is no objection as to the title other than whether or not there was a fee simple title in the defendant at the time of the cancellation, and the unpaid mortgage which appears in the correspondence is not in issue.

'Mr. Frazier: You are relying upon whether the probate proceedings were completed within the required time or not?

'Mr. Russell: That is right.'

Thus we find the plaintiffs basing their case on the failure of the defendant to complete the probate proceedings within seven months under the following paragraph of the supplemental contract: 'That Reese & Reese, attorneys for second parties (plaintiffs) have examined the abstract covering the property mentioned in the said agreement, and have pointed out certain...