Swayze v. Bartlett, 5616

• Court: Supreme Court of New Mexico
• Citation: 58 N.M. 504,1954 NMSC 19,273 P.2d 367
• Docket Number: No. 5616,5616
• Parties: SWAYZE v. BARTLETT.
• Decision Date: 30 January 1954

Page 367

273 P.2d 367

58 N.M. 504

SWAYZE v. BARTLETT.

No. 5616.

Supreme Court of New Mexico.

Jan. 30, 1954.

George L. Reese, Sr., Roswell, George L. Reese, Jr., Carlsbad, for appellant.

Donald Brown, Reswell, for appellee.

ROGERS, District Judge.

This is an appeal from a final judgment of the District Court of Chaves County in probate proceedings originating in the probate court of that county, but thereafter removed under the provisions of Sec. 16-419, N.M.S.A.1941. The appellant was administratrix below, and appellee, the objector. Inasmuch as a limited cross appeal has been filed, parties will be referred to herein as 'administratrix,' and 'objector.'

Edward F. Bartlett died intestate on June 16, 1948, in Chaves County, New Mexico, leaving as his survivors the following: Alida E. Bartlett (objector), his widow; Blanche Bartlett Swayze (administratrix), a daughter; Edna Bartlett Kimmons, a daughter; and two sons, Ralph Bartlett and Walter F. Bartlett.

Decedent and objector were married in Illinois in 1902, moving to New Mexico in 1906. Between the inception of their New Mexico residence and the year 1948, the parties acquired in the name of decedent, in fee simple, some 225 acres of irrigated land, and some 160 acres of land in decedent's name by virtue of a lease from the Commissioner of Public Lands of the Territory of New Mexico. This lease has been continuously renewed by the commissioner since then, in the name of Edward F. Bartlett or Rudolph Caughey, a creditor of decedent, and presently in the name of Blanche B. Swayze, as administratrix.

This couple remained together with apparent harmony, so far as the record reveals, operating the real estate as an irrigated farm until 1928. In that year the wife, Alida E. Bartlett, deemed it imperative for her to make an extended visit to Illinois, where she remained until about 1932, at which time a state of incompatibility developed between the parties, and on May 26, 1934, the wife, before a notary public in Kankakee County, Illinois, executed, in favor of her husband, a quitclaim deed covering all of the farm lands in Chaves County, New Mexico, together with a bill of sale to all of the livestock, farm equipment and chattel property located thereon, but no release or relinquishment of her interest in the agricultural lease was ever executed.

In December, 1942, Mrs. Bartlett returned to the State of New Mexico, and remained at the abode of her husband until March 1943, but the parties were unable to adjust or reconcile their differences, and on March 4, 1943, the husband and wife called at the office of Mr. G. L. Reese, Sr., who was then a licensed and practicing attorney in the City of Roswell, where an instrument designated as 'Separation Agreement and Contract Settling Property Rights' was prepared for execution by the parties. After this instrument was prepared, but before execution, the attorney suggested that the wife should employ an attorney to advise her, but the suggestion was declined. The instrument was then executed by both parties, and the amount of $1,202 was subsequently paid by the husband to the wife. Shortly after the execution of the property settlement, the wife returned to the State of Illinois, until in December, 1946, when she returned of her own volition, to the abode of the husband, and within a few days after her arrival in Chaves County, New Mexico, they again cohabited as husband and wife, and continued to live together as husband and wife, continuously, from December, 1946 until the date of the decedent's death in June, 1948.

The administratrix, in her final report, among other things, recited the execution of the separation agreement above referred to, claimed that objector had relinquished any claim in and to the estate of Edward F. Bartlett, and concluded that the objector could not be considered as an heir of the decedent. Objector filed her objections to this final report, and an extended hearing was had before the trial court, and as a result of same, a final decree was entered in this cause.

This decree determined that the court had jurisdiction of all parties to the cause; that it had jurisdiction of the subject matter, including personal property in the hands of the administratrix; and that it had power to determine the heirship of the decedent, Edward F. Bartlett; the persons who were entitled to share in the personal property of the estate, and to determine the respective interest of such persons entitled thereto. The court then decreed that objector and five children of the decedent were his sole heirs at law, and that the widow objector was entitled to one-half, and each child to a one-tenth interest in and to all of the personal property of which decedent died intestate.

The decree further provided that the surviving widow had theretofore waived her right of inheritance, and was therefore not entitled to share in the distribution of the personal property of the estate, except in her capacity as community survivor. From this decree the administratrix has appealed. The objector has cross-appealed, alleging aggrievement to the judgment, limiting her recovery of personal property to an undivided one-half interest in lieu of the undivided five-eighths interest to which she believed herself entitled.

We are met at the threshold of this cause by a two-pronged attack levied against the jurisdiction of the trial court to hear and determine the vital issues presented and incorporated in said final decree. The first ground is two-fold in nature, that the heirs at law of decedent were necessary and indispensable parties to the proceeding, and (2), that the lands covered by the agricultural lease belonged to the State of New Mexico. Hence, the State is an indispensable party, and the court was without jurisdiction to determine the ownership of the lease. The second ground challenges the jurisdiction of the district court, sitting as a probate court on removal proceedings, to determine and adjudicate the separation agreement, and the muniments of title given by objector to decedent.

We are of the opinion that the administratrix' first theory is untenable, under the doctrines announced in our previous opinions in Sullivan v. Albuquerque Nat. Trust & Savings Bank, 1947, 51 N.M. 456, 188 P.2d 169 and Rubalcava v. Garst, 1952, 56 N.M. 647, 248 P.2d 207. Inasmuch as the heirs at law are not indispensable parties insofar as concerns personal property, we conclude the court had jurisdiction to try the issues presented insofar as those parties are concerned.

A more serious challenge to the jurisdiction of the lower court appears from the fact that the Commissioner of Public Lands of the State of New Mexico was not joined as a party litigant in the proceedings. Section 8-863, N.M.S.A.1941, provides, in part, as follows:

'Any person * * * claiming any right, title, interest * * *, in or to any state lands, covered by any lease * * * executed by the commissioner, shall have the right to initiate a contest before the commissioner who shall have the power to hear and determine same. * * *'

The various functions of the commissioner of public lands have received the consideration of this Court in a number of cases, the most important of which, for the purposes of this case, are: State ex rel. Evans v. Field, 1921, 27 N.M. 384, 201 P. 1059; American Trust & Sav. Bank of Albuquerque v. Scobee, 1924, 29 N.M. 436, 224 P. 788; Ellison v. Ellison, 1944, 48 N.M. 80, 146 P.2d 173; Burguete v. Del Curto, 1945, 49 N.M. 292, 163 P.2d 257.

From these cases, as crystallized in Justice Mabry's opinion in the Del Curto case, has evolved a rule that a district court does not have jurisdiction to try and determine the rights of private litigants to state land, including leases thereof, if the Commissioner of Public Lands is not a party to such proceedings.

We have decided to reconsider the announcements made in the cases hereinabove mentioned, to re-evaluate the quoted statute, and if necessary, to modify the applicability of that law to certain litigation between private individuals. We are, of course, mindful of the seriousness of modifying previous decisions of this Court, and are hesitant to do so, but when logic and better reason so require, we will not fail to announce what, in view of mature reconsideration, appears to be the better rule. A review of the above cases now becomes advisable. In this regard, the case of State ex rel. Evans v. Field, supra, should be reviewed.

This case, decided in 1921, deals with a contract for the sale of public lands to a private citizen. The contract recited that the land was being purchased for grazing and agricultural purposes only, and any minerals thereafter found thereon, were reserved to the fund or institution to which the land belonged. The relator, desiring to accelerate the installment payment provision in the agreement, tendered the entire balance due, and demanded a deed of the commissioner, conveying the land in fee simple, the demand being refused by the commissioner on the ground that minerals were reserved to the state under the contract; and action of mandamus was brought against the commissioner. Justice Parker, speaking for the Court, held that mandamus will not lie against the commissioner, because it is, in effect, an action against the State, and that no sovereign state can be sued in its courts, or any other, without its consent.

Thus we find that the commissioner of public lands is not amenable to suit involving claims by private litigants, and may plead a sovereign's immunity from litigation if he so desires. We therefore are confronted with the proposition that the so-called 'indispensable party' is immune from process.

We wish to point out, however, that under the issue in the Field case, the commissioner was actually an indispensable party, inasmuch as reservations of minerals is a matter peculiarly within the commissioner's province.

The above-quoted statute...