Sandoval v. Sandoval, No. 5881

Docket NºNo. 5881
Citation1956 NMSC 27, 61 N.M. 38, 294 P.2d 278
Case DateFebruary 16, 1956
CourtSupreme Court of New Mexico

Page 278

294 P.2d 278
61 N.M. 38
Carlos SANDOVAL and Procopio Sandoval, Plaintiffs-Appellees.
v.
Roman SANDOVAL, Defendant-Appellant.
No. 5881.
Supreme Court of New Mexico.
Feb. 16, 1956.
Rehearing Denied March 15, 1956.

Page 279

[61 N.M. 39] Simms & Modrall, Vance Mauney, Albuquerque, for appellant.

Filo M. Sedillo, Belen, R. F. Deacon Arledge, Albuquerque, for appellees.

COMPTON, Chief Justice.

Appellees brought this action to partition real estate, and from an adverse judgment, appellant appeals. The denial of a motion for a new trial on the grounds of newly discovered evidence, is also assigned as error.

We will first dispose of the claim of error allegedly inhering in the judgment. The report of the commissioners was contested below and it is made the basis of multiple attacks on appeal. It is first contended[61 N.M. 40] that the report should have been rejected because of the inequality in the division, and that allowances were not

Page 280

given for expenditures made by appellant in improving the premises. In this respect, the report of the commissioners is presumptively correct and their action should not be set aside on the grounds of unequal allotment except in extreme cases, as where made on wrong principle or where partition is grossly unequal. Mitchell v. Cline, 84 Cal. 409, 24 P. 164; Bergman v. Rhodes, 334 Ill. 137, 165 N.E. 598, 65 A.L.R. 344; Cooper v. Long, 115 Okl. 286, 244 P. 167, 46 A.L.R. 343; Wilkerson v. Wilkerson, 169 Okl. 232, 36 P.2d 935. There is no evidence that would bring the report within the exception.

The parties are brothers and were the owners as tenants in common of the premises involved, appellant being the owner of an undivided 76/88 interest and appellees being the owners of an undivided 6/88 interest each therein. The premises consisted of a house and lot in Grants, a seven room house of an estimated value of $7,000 in San Mateo, several small tracts of land, and about seven sections of deeded land. On the strength of all the deeded land appellant had acquired Taylor Grazing and Forest Permits exceeding fifteen sections, which land had been used by the parties jointly, appellees running some 80 head of cattle and appellant running 50 head of cattle and 700 head of sheep thereon. In making the division, the commissioners allotted appellees jointly 1120 acres of deeded land as their share, and the remaining real estate was allotted to appellant. The retention of the permits by appellant, no doubt, was a matter of consideration in making the partition.

The point is made that the decision of the commissioners was influenced by the conduct of appellees. Unquestionably, when the conduct of an interested party influences the acts of the commissioners, the reports should be rejected, Griffin v. Tomlinson, 155 Va. 150, 154 S.E. 483. But we fail to see any prejudicial conduct. The record merely discloses that appellees accompanied two of the commissioners as they went over the premises and in some instances identified the land jointly owned by the parties.

Another ground of attack is that the commissioners did not personally inspect the premises following their selection with a view to ascertain respective values as provided by Sec. 22-13-6, 1953 Comp. The evidence discloses that subsequent to their selection, two...

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7 practice notes
  • Romero v. Bernell, No. CIV 08-422 BB/WDS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 24, 2009
    ...an equitable partition without manifest injury has the burden of demonstrating that the land contains such minerals. Sandoval v. Sandoval, 61 N.M. 38, 294 P.2d 278, 281 For the above stated reasons, Petitioners' Petition to Partition will be GRANTED. The parties may suggest the names of app......
  • Latta v. Harvey, No. 6556
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 25, 1960
    ...addressed to the sound discretion of the trial court. See Mitchell v. Forster, 1955, 59 N.M. 226, 282 P.2d 708; Sandoval v. Sandoval, 1956, 61 N.M. 38, 294 P.2d 278; and Morrison v. Rodey, 1959, 65 N.M. 474, 340 P.2d It should suffice to answer the claim that in the absence of a showing of ......
  • Levorsen v. Freeman, No. A05-62 (MN 9/20/2005), No. A05-62.
    • United States
    • Supreme Court of Minnesota (US)
    • September 20, 2005
    ...or where the partition appears to have been made upon wrong principles." 59A Am. Jur. 2d, Partition § 128; see also Sandoval v. Sandoval, 294 P.2d 278, 279-80 (N.M. 1956); Forest Park Props., Inc. v. Pine, 224 N.E.2d 763, 768 (Ohio Ct. App. 1966); Cooper v. Long, 244 P. 167, 169 (Okla. 1926......
  • Briggs v. Smith, NO. 31,036
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 26, 2013
    ...raised at trial, even though it was an obvious problem from the time of Defendants' answer. See Sandoval v. Sandoval, 1956-NMSC-027, ¶ 9, 61 N.M. 38, 294 P.2d 278 ("To warrant the granting of a new trial [on ground of newly discovered evidence], it must appear that the testimony relied on h......
  • Request a trial to view additional results
7 cases
  • Romero v. Bernell, No. CIV 08-422 BB/WDS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 24, 2009
    ...an equitable partition without manifest injury has the burden of demonstrating that the land contains such minerals. Sandoval v. Sandoval, 61 N.M. 38, 294 P.2d 278, 281 For the above stated reasons, Petitioners' Petition to Partition will be GRANTED. The parties may suggest the names of app......
  • Latta v. Harvey, No. 6556
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 25, 1960
    ...addressed to the sound discretion of the trial court. See Mitchell v. Forster, 1955, 59 N.M. 226, 282 P.2d 708; Sandoval v. Sandoval, 1956, 61 N.M. 38, 294 P.2d 278; and Morrison v. Rodey, 1959, 65 N.M. 474, 340 P.2d It should suffice to answer the claim that in the absence of a showing of ......
  • Levorsen v. Freeman, No. A05-62 (MN 9/20/2005), No. A05-62.
    • United States
    • Supreme Court of Minnesota (US)
    • September 20, 2005
    ...or where the partition appears to have been made upon wrong principles." 59A Am. Jur. 2d, Partition § 128; see also Sandoval v. Sandoval, 294 P.2d 278, 279-80 (N.M. 1956); Forest Park Props., Inc. v. Pine, 224 N.E.2d 763, 768 (Ohio Ct. App. 1966); Cooper v. Long, 244 P. 167, 169 (Okla. 1926......
  • Briggs v. Smith, NO. 31,036
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 26, 2013
    ...raised at trial, even though it was an obvious problem from the time of Defendants' answer. See Sandoval v. Sandoval, 1956-NMSC-027, ¶ 9, 61 N.M. 38, 294 P.2d 278 ("To warrant the granting of a new trial [on ground of newly discovered evidence], it must appear that the testimony relied on h......
  • Request a trial to view additional results

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