Stueber v. Pickard, 19120
| Decision Date | 28 August 1991 |
| Docket Number | No. 19120,19120 |
| Citation | 1991 NMSC 82,816 P.2d 1111,112 N.M. 489 |
| Parties | Robert F. STUEBER and James M. Stueber, Plaintiffs-Appellees, v. H. Griffin PICKARD, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
H. Griffin Pickard, Jr. (Pickard) appeals judgment in favor of Robert and James Stueber (the Stuebers). The Stuebers are brothers who inherited a house from their parents. They sold the house for approximately $55,000 to a corporation that was never registered with the Corporation Commission, Pickard Builders, Inc. (the corporation). They dealt with H. Griffin Pickard in negotiating the sale. By two promissory notes, the corporation was to pay the Stuebers $680 per month from its interest in a mortgage it held on another house. It was agreed that the other house was collateral for the loan obligation, but, apparently, as we explain more fully below, the Stuebers' lien interest was never recorded. Payments were made for two years until the collateral house was sold.
The Stuebers believed that the corporation recorded their security interest in the collateral house, but evidently this was not done. We say "evidently" because no one knows on appeal and the record does not reflect whether the Stuebers actually held a recorded mortgage interest in the collateral house. As the case progressed, however, the issue came to be not what actually happened with respect to the Stuebers' secured interest in the collateral house, but what the Stuebers believed happened. The Stuebers believed that Pickard defrauded them by selling the collateral house in such a way as to destroy what they believed was their recorded interest. From the record it appears that in fact there never had been a mortgage recorded on the collateral house showing the Stuebers as lien holders of record with a secured interest in the house.
Nevertheless, the Stuebers threatened to sue Pickard for fraud if he did not make good on the obligation to pay the notes. The Stuebers and Pickard met several times and negotiated a settlement. In December, 1983, several documents were prepared by the Stuebers' attorney: (1) an assignment and bill of sale from Pickard to the Stuebers of a percentage interest which Pickard owned in a real estate joint venture; (2) a warranty of title specifying that Pickard in fact was possessed of this interest; (3) a repurchase agreement in which it was agreed that the Stuebers would receive all distributions attributable to Pickard's interest in the joint venture until January 1, 1989, at which time Pickard would buy back his interest for $55,000 less any distributions the Pickards had received; (4) a consent to Pickard's transfer and waiver signed by his co-joint venturers; and (5) a release of liability signed by the Stuebers in which they excepted Pickard's obligation under the repurchase agreement.
Documents 1 and 4 were executed in December, 1983. Documents 2, 3 and 5 were not executed until May, 1984, owing to Pickard's difficulty in getting all the joint venturers to sign document 4. The Stuebers never received any distribution from the joint venture, and Pickard never made any payment to them under the repurchase agreement. The Stuebers sued to collect under the repurchase agreement and were awarded judgment against Pickard.
On appeal, Pickard alleges that the Stuebers' supposed claim of fraud was invalid as there never had been any mortgage recorded for him to tamper with, and thus their forbearance from suing amounted to a lack of consideration necessary to support the assignment and bill of sale. Further, he alleges that the repurchase agreement was a second and separate contract unsupported by consideration. He also contends that because the joint venture was an interest in...
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