Tietzel v. Sw. Const. Co.

• Decision Date: 29 November 1944
• Docket Number: No. 4740.,4740.
• Citation: 154 P.2d 238,48 N.M. 567
• Parties: TIETZELv.SOUTHWESTERN CONST. CO.
• Court: New Mexico Supreme Court

48 N.M. 567

154 P.2d 238

TIETZEL

v.SOUTHWESTERN CONST. CO.

No. 4740.

Supreme Court of New Mexico.

Nov. 29, 1944.

Appeal from District Court, Bernalillo County; Bryan G. Johnson, Judge.

Action by George R. J. Tietzel against the Southwestern Construction Company to quiet title, wherein defendant filed a cross-bill. From the decree, plaintiff appeals.

Affirmed.

Statutes relating to adverse possession cannot be invoked against a cotenant in whose favor there exists a presumption that one cotenant acts for the benefit of all unless there is definite proof to the contrary. 1941 Comp. §§ 27-120, 27-121.

Frank O. Westerfield, of Albuquerque, for appellant.

John F. Simms, Hugh B. Woodward, and Lawson K. Stiff, all of Albuquerque, for appellee.

SADLER, Chief Justice.

This appeal marks the second appearance of this case in our court. See Tietzel v. Southwestern Construction Company, 43 N.M. 435, 94 P.2d 972, 126 A.L.R. 307. We reversed the decree of the District Court of Bernalillo County on that appeal for error in making an order of reference over the plaintiff's objection. The cause was remanded with the direction to award a new trial. It is from the decree entered following a new trial that the present appeal is prosecuted.

In his complaint the plaintiff, Tietzel, sought to quiet title to real estate located in the following additions to the City of Albuquerque, to-wit:

“All of Blocks 9, 10, 11, 12, 13 and 14 of the Sulzer Addition; Blocks 11, 12 and 13 of the Angelo Viviani Addition, hereinafter referred to as the Viviani Addition; and certain described lots in Blocks 5 and 9 of the Rodey and Bratina Addition.”

The real estate located in the Rodey and Bratina Addition is removed from consideration through defendant's disclaimer of title to any parcels of land in said addition described in the complaint.

The defendant interposed an answer of general denial and by cross-complaint asserted title in itself to the premises involved in the Sulzer and Viviani Additions, limiting its claim at the trial, however, to an undivided one-half interest only in the property located in the Sulzer Addition.

A new trial was had and the court entered its decree quieting title in plaintiff to all the lots in the Rodey and Bratina Addition, to which title was asserted in the complaint, and to an undivided one-half interest in the property involved in the Sulzer Addition. The decree quieted title in defendant to an undivided one-half interest in the property located in the Sulzer Addition and as well to the entire interest in all the described property located in the Viviani Addition. The plaintiff appeals, complaining of so much of the decree as quiets title in defendant to an undivided one-half interest in the land in the Sulzer Addition and to the entire interest in the area located in the Viviani Addition and complaining also insofar as the decree fails to quiet title in him to the entire interest in both properties.

The Viviani and Sulzer Additions as platted are parts of two narrow strips of land 62 1/2 varas in width north and south, extending from the floor of the Valley of the Rio Grande River east toward the mountains, a distance variously estimated from one to one and one-half miles. Originally the two narrow strips were in one tract 125 varas in width from north to south. The strip from which the Viviani Addition was platted adjoins on the north the strip from which the Sulzer Addition was platted and parallels it from east to west. So far as the record discloses, the earliest muniment of title embracing both of these narrow strips appears as Entry No. 27 in an original abstract containing some two hundred fifty entries, certified to us by the district judge for inspection along with certain other original exhibits, among them, four plats or blue prints of varying size and extent. The deed at Entry No. 27 of the abstract discloses a conveyance on June 7, 1823, by Juan Armijo Alferes, Constitutional Alcalde, to Juan Antonio Gallegos of a strip 150 varas wide embracing the two strips 62 1/2 varas in width described above. As shown by the next entry, No. 28, some forty-four years later, April 8, 1864, one Juan Gallegos, as grantor, conveyed 125 varas of this land, being the two strips 62 1/2 varas wide mentioned above, to one Nepomuseno Lopez and to one Maria Manuela Lopez, father and daughter, respectively, the grantees taking as tenants in common.

We have cited this origin of the Lopez title under which both parties claim as to the disputed area in the Sulzer Addition and the basis of one of defendant's claims to the disputed area in the Viviani Addition, to afford a better understanding of their respective contentions. Without now conceding the correctness of defendant's assertions as to what the proof shows the state of the title to be, we select the following passages from its brief as the best exposé of their respective claims found in the brief of either party, to-wit:

“The plaintiff claims a superior title to the real estate within the south half of the Lopez strip to-wit: the lots in the Sulzer Addition under title tracing back to a deed executed by Nepomuseno Lopez, in which deed his co-tenant, Maria Manuela Lopez, did not join.

“The defendant claims title by virtue of a deed executed by the heirs at law of Nepomuseno Lopez and Maria Manuela Lopez.

“As to the lots and blocks in the Angelo Viviani Addition, plaintiff chooses to ignore the Lopez title and founds his claim on a chain emanating from the heirs of Telesforo Martinez. The first muniment in this chain is the will of Telesforo Martinez, shown by plaintiff's Exhibit G, at page 2 (abstract), which will was presented for probate March 19, 1880. By deed from the heirs of Telesforo Martinez there was conveyed to plaintiff's predecessors in title their interest in that strip of land platted as the Angelo Viviani Addition, which is identified as the north half of the Nepomuseno Lopez and Maria Manuela Lopez strip; these deeds to Viviani and his predecessors define the eastern boundary of such tract as ‘the foothills' or ‘the hills.’

“Defendant, through its predecessors in title, also claims under the Martinez chain of title that area of the same strip bounded on the west by the ‘summit of the foothills' and on the east by the Albuquerque Grant line. The City of Albuquerque, designated by the act of Congress as trustee for the owners of real estate within the grant boundaries, has always recognized the titles to these various strips of land as extending to the grant line.

“In other words, defendant claims title to an undivided one-half interest in the Sulzer strip, and to all of the land in the Angelo Viviani Addition under the Lopez chain of title. The defendant also claims a superior title under the Martinez chain to that portion of the disputed area in the Angelo Viviani Addition strip which is bounded on the west by the ‘summit of the foothills.”’

We shall first consider the claims of the respective parties to the disputed areas lying within the Sulzer Addition. As to plaintiff's claim on this area, laying aside for the present his reliance on title by adverse possession, he admittedly rests such claim to the whole interest upon a deed to a predecessor in title signed by one only of two co-tenants, each owning an undivided one-half interest. Nepomuseno Lopez and his daughter, Maria Manuela Lopez, by deed in 1864 acquired the 125-vara strip embracing both the lands in the Viviani and the Sulzer Additions. In 1887 Nepomuseno Lopez alone conveyed the south 62 1/2 varas from which the Sulzer Addition was subsequently platted to Meliton Chavez, from whom the same passes by mesne conveyance to one J. F. Sulzer, who gave the Addition his name when he platted it. The plaintiff accepted a conveyance from Sulzer to the blocks in controversy in the Sulzer Addition.

As between the plaintiff and the defendant it must be obvious, passing the question of adverse possession, that if defendant shows itself vested with the title of Maria Manuela Lopez, it is the owner of an undivided one-half interest in the disputed areas located in the south half of this 125-vata strip.

Maria Manuela Lopez had been dead for many years at the time the plaintiff instituted this suit to quiet title. He joined as defendants “The unknown heirs of Maria Manuela Lopez, deceased.” The trial court's Finding No. 31 is as follows:

“That Maria Manuela Lopez was the daughter of Juan Nepomuseno Lopez, who, upon his death, left him surviving as his sole heirs, the heirs at law of Maria Manuela Lopez. That the sole surviving heirs at law of Maria Manuela Lopez and Juan Nepomuseno Lopez, at the time of trial, were: Toribio Gutierrez, Olegio Torres, Carslota G. de Apodaca, and Telesfor Gutierrez, grantors in the deed, ‘Defendant's Exhibit 1’, which grantors were made defendants in the instant cause by the plaintiff under the designation ‘the unknown heirs of Maria Manuela Lopez, deceased, and the unknown heirs of Nepomuseno Lopez.”’ (Tr.36.)

The conclusion thus seems inescapable that the defendant is vested with an undivided one-half interest in the disputed area lying within the Sulzer Addition, as found and held by the trial court unless, when defendant took under a deed from the heirs of Maria Manuela Lopez, the interest of such heirs already had been divested or they then were or defendant later became barred and estopped from asserting same. These are matters to be determined subsequently upon a review of certain findings of the trial court and its conclusion that plaintiff's reliance on adverse possession or limitations was not sustained.

We turn next to a consideration of the issues raised by the conflicting claims of the parties under the Martinez chain of title. Insofar as the issues under this chain are concerned, they relate only to such portion of the north half of the above mentioned 125-vara strip as lies within the Viviani Addition. The circumstance that both the...