Union Land & Grazing Co. v. Boney

• Decision Date: 01 November 1915
• Docket Number: No. 1779.,1779.
• Citation: 152 P. 1143,21 N.M. 115
• Court: New Mexico Supreme Court
• Parties: UNION LAND & GRAZING CO. ET AL.v.ARCE ET AL.VEEDERv.BONEY.

21 N.M. 115

152 P. 1143

UNION LAND & GRAZING CO. ET AL.

v.ARCE ET AL.VEEDER

v.BONEY.

No. 1779.

Supreme Court of New Mexico.

Nov. 1, 1915.

Syllabus by the Court.

In a suit to quiet title, where a general denial is filed, the burden is upon plaintiff to establish his title, and defendant is entitled to object to the introduction in evidence of an instrument in writing under which plaintiff claims title if the same is not legally admissible, notwithstanding the fact that plaintiff may have put in evidence, before the proffer, a deed by which defendant divested himself of title, as a plaintiff, in such a suit, must recover, if at all, upon the strength of his own title.

(a) Where the alleged ancient original is lost and an ancient purported copy is offered, made by private hand, and the purported maker is unknown or deceased, and the fact is established that it has been in existence for more than 30 years, and the copy comes free from suspicion, it may be received in evidence under the ancient document rule.

(b) Where the ancient original is lost, or for other sufficient reasons cannot be produced at the trial, and a purporting official record is offered, made more than 30 years before, and certifying the deed contents and execution, but inadmissible as an official record, because the statute law relative to its execution or acknowledgment has not been complied with, such copy is properly received in evidence, as a circumstance tending to show that the original, from which it was copied, at that time was in existence, and that it was executed by the party whose name is signed to it, but the weight to be accorded to such circumstances or link in the chain of evidence is another matter, entirely divorced from the question of the admissibility of the evidence.

(c) Such ancient record copy, alone, would not be sufficient to establish title, but would require some other confirming circumstance, such, for example, as the continuous possession of the land, or some other item of corroboration, which, coupled with such ancient record copy, would be sufficient to produce in the mind proof of the fact that the original deed existed, and was executed by the grantor named therein.

(a) Where a grantor, in a recorded copy of a deed, testified that he did not sign or execute such deed, and his wife's name was also signed to such deed, although not required under the law to effectuate the conveyance, and she testified to facts which showed that her name had been forged thereto and such deed was also witnessed by two witnesses, although not required, and one of the said witnesses testified that, to the best of his recollection, he had never signed such deed as a witness, such testimony of the wife and witness corroborated the testimony of the grantor, within the purview of section 2175, Code 1915, the grantee named in such deed being dead, and warranted a finding that the grantor did not sign or execute such deed.

(b) Corroborating evidence may come as effectively from facts and circumstances as from the mouth of a witness giving direct testimony to the fact sought to be sustained.

Appeal from District Court, Mora County; D. J. Leahy, Judge.

Suit by the Union Land & Grazing Company and others against Carmen Arce and others, wherein Elmer E. Veeder intervened and asked relief against Santiago Boney. From a judgment for Boney, intervener appeals. Affirmed.

Corroborating evidence may come as effectively from facts and circumstances as from the mouth of a witness giving direct testimony to the fact sought to be substantiated.

This cause is entitled “In the Matter of the Intervention of Elmer E. Veeder, Appellant, v. Santiago Boney, Appellee,” and is a proceeding within a suit entitled “The Union Land & Grazing Co. et al. v. Carmen Arce et al.,” which is numbered 632 on the civil docket of the district court of the Fourth judicial district of the state of New Mexico, in and for the county of Mora. The last-named suit was a partition suit, filed for the purpose of ascertaining the owners of the Mora grant and of partitioning that property among them. Hereafter, for convenience and brevity, it will be referred to as the “principal suit,” and for the same reasons that part of the principal suit now before the court on appeal will be referred to as the “intervention.”

The issues in the intervention were formed in the following manner: On August 6, 1914, the appellant intervener filed in the principal suit his petition in intervention, in which he set up claim to an undivided one twentieth of one seventy-sixth interest in the Mora grant, and asked that Santiago Boney, appellee herein, be required to answer the allegations of the petition and set up whatever right or claim he had to the undivided interest described therein, and that that interest be adjudged to be in the intervener and appellant free and clear from any and all claims of the appellee. An order was entered, permitting the petition in intervention to be filed. On October 13, 1914, Santiago Boney, the appellee, filed his answer to the petition in intervention, in which he set up three defenses, two only of which need be considered, viz.: (1) A denial of appellant's title; and (2) title in himself in fee simple. The prayer of the answer asks that title to the undivided one twentieth of one seventy-sixth interest be quieted in Santiago Boney as against the appellant, Elmer E. Veeder. To this answer the appellant filed a reply, denying that Boney had a fee-simple title to the interest involved.

At the trial of the suit on October 20, 1914, the appellant, having and assuming the burden of proof, offered the following evidence and testimony, with other evidence, not material in view of the findings by the trial court: (1) The bill of complaint in the principal suit. (2) Notice for service by publication in the principal suit. (3) Proof of publication of service in the principal suit. (4) Stipulation that Santiago Boney “inherited from Miguel Mascareñas, the fourth (fortieth) grantee in the Mora grant, a 1/20 of 1/76 interest in said grant. (5) Certified copy of the record of an instrument dated June 25, 1877, purporting to have been made by Santiago Boney and his wife to Pedro Valdez, for the interest involved herein. (6) Certified copy of writing on the instrument mentioned in item No. 5, purporting to convey the property described in the record of that instrument from Pedro Valdez to Pablo Valdez on July 3, 1877. This was excluded by the trial court. (7) Deed made by Pablo Valdez and his wife to Jesus M. Garcia, on January 8, 1894, purporting to convey the interest involved herein. (8) Stipulation that appellant, on December 2, 1911, at 10 o'clock a. m., had deeds from the heirs of Jesus Ma. Garcia for whatever interest they derived from Jesus Ma. Garcia, deceased, claiming under Santiago Boney.

The appellee's case, briefly and substantially stated, was as follows: (1) Testimony of Santiago Boney, in his own behalf, unequivocally denying that he ever signed the instrument described in item No. 5 above, denying that he ever signed any instrument affecting his interest in the Mora grant, and stating that he never knew of the existence of the record described in item 5 above (the certified copy thereof being marked plaintiff's “Exhibit No. 3”), until he saw Messrs. Davis and Clark “about two years” prior to 1914. (2) Testimony of Feliciana Jimenez de Boney, wife of Santiago Boney, denying that she ever signed the instrument of which Exhibit No. 3 purports to be a copy. (3) Testimony of Manuel Lopez, whose name appears on the record of the instrument mentioned in item No. 5 as a witness, stating that, to the best of his knowledge and belief, he never signed the instrument in question, or any other instrument with Telesfor Jimenez.

At this point the defendant and appellee rested his case, and the intervener and appellant offered rebuttal testimony, not material in view of the findings.

On October 22, 1914, the trial court made seven formal findings of fact. It is only necessary to consider findings 4, 5, 6, and 7. The first three findings will be omitted. The findings are as follows:

“(4) That on and prior to the 25th day of June, 1877, the said Santiago Boney was the owner and had good title to an undivided one-fourth of one-fifth of one-seventy-sixth interest in the tract of land and real estate known as the Mora grant, the same being a portion of the interest of Miguel Mascareñas, one of the original grantees therein; (5) that the instrument of which Exhibit No. 3 introduced in the above entitled cause by the said intervener, Elmer E. Veeder, purports to be a copy, purporting to be a conveyance of the interest of the said Santiago Boney, in the said tract of land known as the Mora grant, to one Pedro Valdez, dated June 25, 1877, and recorded in Book 4, at pages 66, 67, and 68 of the records of Mora county, was not made, executed, or delivered by the said Santiago Boney or by his wife, Feliciana Jimenez, and that the said instrument was not signed by them, or either of them or on their behalf; (6) that the said Santiago Boney is still the owner of the said undivided interest, free and clear from any claim or demand of the said intervener, Elmer E. Veeder; (7) that the said intervener, Elmer E. Veeder, has no right or title in or to the said 1.4 of 1.5 of 1.76th interest in the said Mora grant, or any portions thereof.”

To the third finding of fact the appellant objected. To the fifth, sixth, and seventh findings appellant objected for the reason that such findings are contrary to the preponderance of the evidence and contrary to the weight of the evidence; there being in fact no evidence to support the finding, and Santiago Boney is barred and precluded by laches from setting up that defense at this time. The objections were overruled, and judgment was entered for appellee, from which judgment this appeal is prosecuted.

John D. W. Veeder and Elmer Veeder...