Smith v. Borradaile

Decision Date27 December 1922
Docket NumberNo. 2640.,2640.
Citation227 P. 602,30 N.M. 62
CourtNew Mexico Supreme Court


Syllabus by the Court.

When evidence tending to establish adverse possession is conflicting, and there is substantial evidence to warrant the trial court in reaching its conclusion, that conclusion will not be set aside on appeal.

The duty arising between tenants in common, as to the common title, is based upon the principle of the unity of right of possession which exists as to each, and whether through common devise or grant or otherwise. One tenant in common, although in possession claiming adversely to his cotenant, cannot, by purchase of an outstanding tax certificate, issued upon taxes levied before he became interested in and in possession of the land, assert title to the whole, as against his cotenant, under the tax deed issued to him after his purchase of the certificate and at the close of the three-year period of redemption. The purchase of the certificate under such circumstances constitutes payment of the taxes by one whose duty it is to pay them, and such payment is for the benefit of all, subject to right of contribution. Case of Bradford v. Armijo (N. M.) 210 Pac. 1070, distinguished.

Rejection of proffered evidence on subject of laches held harmless.

Record examined and defense of laches held not established.

On appeal, the case will be considered upon the pleadings and issues as framed below.

Offers to prove certain facts made upon the trial of the case, which offers state mere conclusions, are too general and were properly rejected.

Syllabus by Editorial Staff.

Tenant after ouster of his cotenants may establish title by adverse possession.

Appeal from District Court, Bernalillo County; M. E. Hickey, Judge.

Suit to quiet title to real estate by James C. Smith against Dolores A. Borradaile, Anita A. Otero, and others. From a judgment awarding title to undivided one-half interest in the premises to the plaintiff and to the defendant Otero, respectively, plaintiff appeals. Affirmed.

Offers to prove certain facts made upon the trial of the case, which offers state mere conclusions, are too general and were properly rejected.

Simms & Botts, of Albuquerque, for appellant.

A. B. McMillen, of Albuquerque, for appellees.


This is a suit to quiet title to certain real estate situate in Bernalillo county, and known as the Poblanos ranch, brought by the plaintiff, James C. Smith, against defendants Dolores Borradaile, Josefa A. Heyn, Ambrosio Armijo, Anita A. Otero, and all unknown claimants of interests in the premises adverse to the plaintiff. Anita A. Otero answered, denying that plaintiff was the owner of the entire title to the real estate, admitted that plaintiff owned an undivided one-half interest therein, and alleged that she owned the remaining undivided one-half interest, title to which she prayed might be quieted in her as against the plaintiff. The plaintiff replied, denying the claim of Mrs. Otero, setting up adverse possession since the year 1884 by plea of the statute of limitations of 10 years, and alleged that the plaintiff was a bona fide purchaser of the entire premises for value without notice of the claims of Mrs. Otero and her predecessors in title, and alleging that she and her predecessors in title had been guilty of laches.

In order to understand some of the contentions advanced by plaintiff, it should be stated that the record discloses that the defendant Josefa Heyn was personally served with summons and copy of complaint on August 22, 1917, and a certificate of default as to her was issued on the 12th of September, 1917. Defendant Ambrosio Armijo was personally served with a copy of summons on the 11th day of August, 1917, by delivering to and leaving with him in the county of Maricopa, state of Arizona, copy of summons with a copy of the complaint attached. Upon such service a certificate of default was issued on December 4, 1917. Defendant Borradaile was served with summons with copy of complaint attached on the 27th day of August, 1917, by personally delivering to and leaving with her such summons at the county of Alameda, in the state of California, and the certificate of default upon such service issued as to her on October 26, 1917. On the 4th day of September, 1917, defendant Anita Otero acquired by conveyance all the interest of Ambrosio Armijo in the premises in question, and on the 15th day of September, 1917, Mrs. Otero acquired by conveyance from Dolores Borradaile and Josefa Heyn all of their interest in said property. Mrs. Otero also claimed to have inherited a one-tenth interest in the property in question from her father upon his death in 1882, and a like one-tenth interest through the death of her sister, Rosalia Armijo. These two-tenths so gained by her through inheritance, together with the three-tenths acquired by conveyance from Ambrosio, Dolores, and Josefa, make up the undivided one-half interest in the premises which she claims in her answer.

No default judgment has ever been entered against any of the defendants upon the certificates of default.

It appears that Ambrosio Armijo, the father of Mrs. Otero, died April 10, 1882, in Bernalillo county, leaving him surviving ten children--Perfecto, Jesus, Teresa, Mariano, Elias, Dolores, Rosalia, Josefa, Anita, and Ambrosio. At the time of his death, five of his children were minors, namely: Dolores, age 15; Rosalia, age 13; Josefa, age 12; Ambrosio, age nine; and Anita, age 5. The deceased left a will which was duly probated giving to each of his ten children, among other things a one-tenth interest in the land in controversy. The widow of the deceased and his oldest son, Perfecto, were joint executors. Perfecto Armijo, the oldest son, went into possession of the land in question about the year 1882, and in the year 1912 conveyed it by warranty deed to Neil B. Field. From the year 1889 to 1912, Perfecto returned the land for taxation in his own name. In 1887 he leased the land to one Jones, who occupied it during the term of his lease. In 1890 he leased the land to one Standlee, who occupied it during the term of his lease. In 1899 he mortgaged an interest in the land to one Harry Lee, which mortgage was afterward paid off. In 1911 he leased the land to James C. Smith, the plaintiff. Perfecto kept all of the proceeds of the land, and at various times during the years mentioned he lived on the land, farmed it, and kept the income. At the time Field bought the land in 1912, Smith was on it, and December 24, 1915, Field and his wife sold the land to Smith, who is this plaintiff, and conveyed the land to him by warranty deed. Smith made improvements on the land, built a house on it, costing approximately $1,400, and leveled some of the land and put it in cultivation. The land lies on the North Fourth street road out of Albuquerque, about 4 1/2 miles from town, and said highway has been greatly improved and paved with concrete by state and federal aid since Smith purchased the land.

The land was assessed for taxes to Perfecto Armijo for the year 1903. The taxes were not paid, and on the 3d day of October, 1904, the ranch was sold at tax sale to the county of Bernalillo. The certificate of said sale was held by said county until the 20th day of July, 1917, when it was sold to the plaintiff, and on the same day recorded. On the 22d day of September, 1920, Smith received a tax deed to the land.

Before Field bought the land in the year 1912, Perfecto had acquired, in addition to his one-tenth interest, the one-tenth interests each of his brothers, Jesus, Mariano, and Elias, and on August 1, 1917, the plaintiff Smith acquired from Teresa A. Pratt, formerly Armijo, and one of the heirs of Ambrosio Armijo, by a quitclaim deed, her one-tenth interest.

The plaintiff claims by adverse possession under the provisions of the act of February 1, 1858, which, for the purpose of reference, may be found as section 2938, C. L. 1897. As originally adopted, this section did not require the person in adverse possession to have color of title, but in 1899 (Laws 1899, c. 63) the Legislature amended the section so as to require color of title, and in 1905 (Laws 1905, c. 139) the original section was further amended by adding a definition of adverse possession. There are two statutes of adverse possession in this state, one of which is the section referred to, and the other of which, for convenience of discussion in this opinion, may be referred to as section 2937, C. L. 1897. The latter section applies to grants derived from the governments of Spain and Mexico.

It is admitted in the record that the premises in question were originally part of the Elena de Gallegos land grant, known as a Spanish grant, but, without determining at this time under which of the sections mentioned above the adverse possession of the plaintiff could ripen into a legal right, the court will, for the purpose of the opinion, adopt the contention of the plaintiff, summarized as follows: That Perfecto Armijo entered into adverse possession of the premises in 1885 (1882 in the testimony); that such possession was open, visible, notorious, adverse, exclusive, and uninterrupted after such entry for 10 years; that no color of title was required to ripen such possession; and that the rights of the adverse claimant had fully accrued under the provisions of section 2938 before the act of 1899 had required color of title as an element of adverse possession.

Turning to the transcript in the case it is fairly deducible therefrom: That the property was at the time of the death of the ancestor a large and well-known farm or hacienda, improved by a dwelling which is described in Mr. Field's testimony as being a “show place” at the time he first knew it, and having cultivated fields. That in 1882 Perfecto, who was one of the executors of his father's will, moved onto the premises and lived there for...

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