Thurmond v. Espalin

• Decision Date: 27 June 1946
• Docket Number: No. 4925.,4925.
• Citation: 171 P.2d 325,50 N.M. 109
• Parties: THURMONDv.ESPALIN et al.
• Court: New Mexico Supreme Court

50 N.M. 109

171 P.2d 325

THURMOND

v.ESPALIN et al.

No. 4925.

Supreme Court of New Mexico.

June 27, 1946.Rehearing Denied Aug. 21, 1946.

Appeal from District Court, Dona Ana County; A. W. Marshall, Judge.

Suit by Benton S. Thurmond against Francisco Espalin and others to quiet title to a tract of land. Judgment for plaintiff, and the defendants appeal.

Judgment affirmed.

The possession of plaintiff claiming by adverse possession and recording of quitclaim deed delivered to him gave claimants to an interest in land constructive notice of hostile character of plaintiff's claim. 1941 Comp.St. § 27-121.

[171 P.2d 326 , 50 N.M. 111]

Thos B. Rapkoch, of Las Cruces, and John T. Hill, of El Paso, Tex., for appellants.

Edwin Mechem, of Las Cruces, for appellee.

BICKLEY, Justice.

This is a suit by plaintiff (appellee) to quiet title to a tract of land, claiming title by adverse possession. Defendants, claiming three-tenths intereest in the land, challenge the plaintiff's claim of title.

The following constitute the Findings of Fact and Conclusions of Law of the Court:

‘1. That the plaintiff in the year 1929 obtained a quitclaim deed to the land in question.

‘2. That he immediately entered into the possession of the same and has ever since been in the open, exclusive, notorious, peaceable and adverse possession of the same and has paid all taxes levied and assessed against said land for more than ten years prior to the bringing of this action.

‘Conclusions of Law.

‘1. That the plaintiff is entitled to a decree quieting his title to the land described in the complaint.

‘2. That the defendants have no right, title or interest in or to said land.’

The court rendered judgment in favor of plaintiff and against defendants.

Certain evidentiary facts gleaned from virtual admissions in the briefs are as follows:

Refugio Espalin, a bachelor, had title to the land in question. He had two brothers, Jose L. and Damacio. Damacio died, leaving as his heirs the appellants in this case and two sons, Damacio and Ramon. Jose L. deeded his one-half interest to his wife, Matilda W. Espalin. April 5, 1929, Matilda W. Espalin executed and delivered a styled quitclaim deed to the lands involved to the appellee Benton S. Thurmond, which deed was recorded April 6, 1929. Ever since that time Thurmond has been in the possession of the lands and has paid the taxes thereon. Thurmond forthwith fenced the lands theretofore unfenced, used it for stock grazing and lately a small portion for raising crops.

About a week (April 13, 1929) after procuring and recording the deed plaintiff Thurmond procured an affidavit from two old timers stating that Matilda Espalin was a co-owner of an individual interest to half the land in question and that the other undivided one-half interest was owned by the heirs of Damacio Espalin. It is claimed by appellants that there is evidence from which the inference might be drawn that the facts stated in the affidavit were known to Thurmond at the time he received the conveyance to him.

The appellants requested a number of findings of fact, all of which were refused, among which is the following: ‘At the time the deed was executed and delivered, Burton S. Thurmond, plaintiff, knew there were relatives of Matilda Wood Espalin and family whose father was the brother of Jose Espalin and Refugio Espalin.’

The evidence is such that reasonable men might draw different inferences therefrom. Had the trial court made the quoted requested finding of fact we might have been unable to say that the evidence did not warrant such finding, but on the other hand since we are required to indulge reasonable presumptions in support of the trial court's judgment and decisions as to questions of fact, we are unable to say that the trial court was in error in refusing this request of defendants.

Appellants' (defendants') contention is that the record does not show that the plaintiff established adverse possession. They argue that there is an absence of showing of good faith in the acquisition of the color of title relied upon by plaintiff. They also argue that the plaintiff did not assert a claim of right to the entire interest in the land in good faith. They say: ‘appellee's contention is that a quit claim deed in form can be a color of title the same as a warranty deed or any other instrument of conveyance. Appellants agree to this proposition.’

In State v. United States Coal & Oil Co., 86 W.Va. 256, 103 S.E. 50, it was decided: ‘A quitclaim deed, describing by metes and bounds the land remised, is good color on which to base a claim of title, regardless of whether or not the grantor appears to have any interest in or title to the land.’

The court remarked in that case that: ‘The principal purpose of color is not to show actual grant of the land or of any interest therein, but is to designate the boundary of plaintiff's claim.’

In Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142, 144, 4 L.R.A., N.S., 776, the court said: ‘But counsel say that it was not color of title because it was a quitclaim deed. A warranty deed and a quitclaim deed both purport to accomplish the same thing, and have the same effect in transferring title. The covenants of a warranty deed do not pass the title, but create a liability, and a quitclaim deed which purports to convey the property is as good color of title as a warranty deed.’ And see 2 C.J.S., Adverse Possession, § 72, p. 603, where it is said: ‘A quitclaim deed is as effective as a warranty deed to confer color of title.’

We think it well to remark that the concessions of appellants are accepted with caution. There is an Annotation in 3 A.L.R. 945 entitled: ‘Test of conveyance as quit claim or otherwise.’ It is there shown that a distinction is sometimes recognized by the courts as to characteristics of a deed which purports merely to convey the interest or title of the grantor as contrasted with one which conveys the property itself.

The deed in the case at bar belongs to the latter class and is color of title so far as the form of the instrument is concerned.

As we understand appellants' argument, it is, that although the deed in question is in form color of title, it is not in fact so, because the grantor did not in fact intend to convey and the grantee did not expect to acquire the whole of the property. Appellants say in their reply brief: ‘In the case before the court, appellee Thurmond acquired a one-half interest which was what Matilda Espalin owned in the property. She knew what she was conveying to him and he knew what he was acquiring from her, so from these facts, the transaction was one of good faith * * *. Under the pleadings and facts the quit claim deed could not be a color of title to the undivided interest of the other heirs and there being no color of title to said undivided interest shown under the New Mexico Statutes, title by adverse possession wholly failed.’

Laying to one said the question of admissibility of evidence to impeach the deed relied upon as color of title because not raised, we think the appellants are correct in their legal proposition. In 2 C.J.S., Adverse Possession, § 60, page 580, it is said of the effect of color of title: ‘The office of color of title is primarily to determine the character and extent of possession.’ And in a note on the same page is the following: “Color of title is anything which shows the extent of occupant's claim.'-Simmons v. Parsons, 20 S.C.L. 492, 495 , quoted in Sprott v. Sprott, 110 S.C. 438, 114 S.C. 62, 96 S.E. 617, 619; and Thompson v. Brannon, 14 S.C. 542, 549.'

Now, if the color of title may serve to limit the boundaries of plaintiff's claim, we see no reason why it may not also serve to limit or define the extent and nature of the claim with respect to the estate claimed. An illustration is given in 2 C.J.S., Adverse Possession, § 70, page 586, as follows:

‘One may not secure by adverse possession a title or estate greater than that claimed.

‘An essential element to an adverse holding which will ripen into title is that throughout the statutory period of possession the possessor must claim the character of title that he afterward asserts under his adverse holding, and, where only a life estate is claimed during the period of possession, one asserting title based upon such adverse possession may not secure the absolute or fee-simple title to the land.’

If the deed in question had expressly conveyed only an undivided one-half interest, we think it could not be doubted that it were not color of title to the interest not conveyed. In Martinez v. Bruni, 235 S.W. 549, 551, the Commission of Appeals of Texas say: ‘It has been definitely decided in this state that a deed to an undivided interest will not, under the 5-year statute of limitation, protect the grantee beyond the interest it, on its face, purports to convey.’

In the 2 C.J.S. article on Adverse Possession in § 61, it is asserted that color of title and claim of right are distinguishable saying: ‘Although ‘color of title’ and ‘claim of title’ are sometimes confounded and erroneously used as if synonymous in meaning, and may be legally equivalent where clearly made so under statute, they are ordinarily distinct and different in meaning, a claim under color of title being one made with a semblance of right or title and a claim of title being a claim to the land against the world irrespective of any foundation for such claim.'

We find it unnecessary to engage in a discussion of the niceties of this suggested distinction since our Statute 1941 Comp. § 27-121 defines adverse possession to be ‘an actual and visible appropriation of land commenced, and continued under color of title and claim of right inconsistent with and hostile to the claim of another;’ etc. We do not hesitate to say that if the plaintiff's ‘claim of right’ was to only an undivided one-half interest in the land here involved and he acknowledged the claim of others to an undivided half...