Vehn v. Bergman

• Citation: 57 N.M. 351,258 P.2d 734,1953 NMSC 37
• Decision Date: 19 May 1953
• Docket Number: No. 5569,5569
• Parties: VEHN v. BERGMAN et al.
• Court: Supreme Court of New Mexico

Page 734

258 P.2d 734

57 N.M. 351

VEHN v. BERGMAN et al.

No. 5569.

Supreme Court of New Mexico.

May 19, 1953.

Rehearing Denied July 25, 1953.

Henry E. Blattman, Las Vegas, Grantham & Spann, Albuquerque, for appellants.

C. L. Collins, Las Vegas, M. J. McGuinness, Albuquerque, for appellee.

COORS, Justice.

The controlling question in this case is whether substantial evidence supports the trial court's judgment in favor of the plaintiff, Ruby E. Vehn.

Mrs. Vehn and Edward P. O'Brien, deceased, were married October 2, 1941, and were divorced April 7, 1944. Under a property settlement entered into between Mr. O'Brien and the plaintiff, O'Brien took title to real estate at 510 N. Eleventh Street in Albuquerque, not involved in this controversy, and plaintiff became vested with title to the property here in question, an apartment building, at 422 N. Eleventh Street, Albuquerque. Subsequent to the divorce plaintiff went to Klamath Falls, Oregon, where she became interested in some property for sale there.

Plaintiff continued a close relationship with her former husband and during June, 1944, she communicated with him by telephone about her contemplated purchase of the Oregon property. He advised her not to buy until she had talked to him further about it. She came to Albuquerque and on June 30, 1944, mortgaged the property involved in this action to the First National Bank in Albuquerque as security for payment of a loan for $4,000, evidenced by a series of $500 notes which became payable at six month intervals.

Plaintiff testified at the trial in this case that on the evening of September 26, 1944, O'Brien suggested that plaintiff, who was recuperating at the time from a nervous breakdown, deed the property to him and that he told her that if she would do so he would pay off the loan and would hold the title as security for the loan, provided that in case appellee and O'Brien should sell it before either of them died, O'Brien would get his $4,000 and that she would have the balance of the purchase price. She further testified that if he died before she did, the property was to go back to her by his last will and testament, and that if plaintiff should die first, O'Brien was to retain title under the warranty deed which she executed to him in pursuance of this oral agreement. Whether there is corroborating evidence to support this alleged oral agreement is a crucial issue in this case.

Shortly after the foregoing events purportedly took place, plaintiff returned to Oregon where she lived until May 1, 1947, when she moved back to Albuquerque and took up residence in one of the apartments at 422 N. Eleventh Street. On June 6, 1948, she married Ralph E. Vehn, and after this marriage continued to reside in the same apartment until the date of this trial.

Cross-examination of the plaintiff disclosed among other things that while she contended that O'Brien held legal title to the property at 422 N. Eleventh Street merely as security, all improvements and repairs made on the property were paid for by O'Brien, as well as the taxes. O'Brien in his income tax returns reported the rentals as part of his income, depreciated the property and took deductions for expenses and improvements. The plaintiff, on the other hand, did not report any of the rentals as her income. Plaintiff, furthermore, paid $40 per month as rent for the apartment which she occupied. Though occupants of other dwelling units in the apartment house paid $75 a month there are indications that plaintiff's apartment was not worth as high a rental and furthermore that she looked after the apartments, collected the rents and deposited the moneys to O'Brien's account. An account book which was the property of O'Brien also showed payments made to plaintiff's husband, Ralph Vehn, for carpentry work in and about the premises. A canceled check dated May 23, 1950, in the amount of $350 payable to plaintiff, was introduced in evidence, representing payment of a balance due plaintiff for labor, painting, papering, materials, repairs, etc. O'Brien stayed at the apartments in the winter time for several winters but paid no rent, according to plaintiff's testimony.

Several witnesses were placed on the stand for the purpose of corroborating plaintiff's testimony. A tenant in one of the apartments, Mrs. A. R. Tarburton, who met and spoke to O'Brien on several occasions, testified thus:

'Q. The conclusion you came to was that Mr. O'Brien treated this property as the property of Mrs. Vehn? A. That is before he left and he very definitely stated that--he said to me that the place was hers.

'Q. Very definitely? A. That is what I took in from the statement he made, I don't know.'

This is perhaps the strongest testimony tending in plaintiff's favor. One may well gather, however, that the witness was not very sure of herself in making the statement as to ownership and as to what O'Brien meant by saying it. The statement is not necessarily inconsistent with an intention on O'Brien's part to leave the property to Mrs. Vehn by will. The testimony is further weakened by the witness' own testimony at another point to the effect that 'the place was hers (Mrs. Vehn's) to take care of.' The testamentary character of the statements made by O'Brien is also reflected in the testimony offered by Mr. Tarburton to the effect that from things Mr. O'Brien said 'he assumed Mr. O'Brien was the owner but that it was to be Mrs. Vehn's when he died.'

Mr. Tarburton further testified with respect to his conversations with O'Brien and the latter's relationship with plaintiff as follows:

'Q. When you talked to him at any time, did he ever mention his wife, Ruby? A. Oh, yes, quite a few times.

'Q. What did he say about his wife, A. Well, on two different occasions, he brought up the subject of property--in one particular time--talked about a tree in the front--had a dead limb on it--taking about that tree, how to remove it, he said: It doesn't make any difference to him--what they did to the tree. When he was gone it would be Ruby's and Mr. Vehn--Ralph, he called him. That is about all he said about it.

'Q. Did he tell you that on more than one occasion? A. Yes, sir.

'Q. You then understood from the--he told you that the property belonged to Mrs. Vehn? A. It would be, the property, after he died--that is the impression. * * *

'Q. That it would be her property after he--if he died? A. Yes, Sir.'

Charles H. Stearns, who likewise appeared for plaintiff, testified as follows:

'Q. While Mr. O'Brien was living, did you have any talks with him when (with?) reference to property affairs? A. During the years he owned the property, I got acquainted with him * * * We would visit on the sidewalk. That was the extent of our acquaintance during the years--a social chat occasionally.

'Q. In the course of those conversations you had with Mr. O'Brien, did he mention anything about his property and particularly about this at 422 North 11th Street? A. I recall that I had a friend one time looking for an apartment and asked Mr. O'Brien if he--at that time there was a vacancy--if he wanted to rent it. He said that he would. He always consulted his former wife * * * the last time I talked to him--well, I said: 'Can I be of any help to you in any way about your property?' 'No,' he said 'Ruby is taking care of it--he said--I consider it her's, there is nothing more we can do.' * * *'

Finally, Hugh A. Trainer, who was interested in buying the property, testified:

'A. Allright, if you figure on kind of straightening things up, if you would like to sell this property, I am in the market to buy it.

'Q. What piece of property is that, Mr. Trainer? A. 422 North 11th--North Eleventh Street. He said: 'No, this property Ruby wants it and it belongs to Ruby and I want her to have it.' I couldn't even get a sale price of any kind. He wouldn't talk sale. He said: 'It is hers, she takes care of it and everything."

Later on, the witness Trainer testified to a conversation with O'Brien immediately after the death of Levita Judd, O'Brien's stepdaughter, when O'Brien indicated it would be necessary to change his will as a result of her death. He testified:

'* * * I said: 'Ed what about the house on 11th Street in Albuquerque, do you want to sell that?' 'That is Ruby's house' he told me 'If you want to, I would like to buy.' 'That house belongs to Ruby. It is hers. She wants it and I want her to have it.' He said. He went on to tell me about the will, stated he had nephews and nieces. * * *'

The glaring gap in all of this testimony is that it makes no reference to any contractual agreement, oral or otherwise, entered into between plaintiff and the deceased, on or about September 26, 1944, or at any other time. The testimony, on the other hand, is consistent with a situation which is substantially supported (in fact, there is scarcely a scintilla of testimony contra) that O'Brien treated the property as his own and that until shortly before his death he had probably included the plaintiff in his earlier will as devisee of the property in question.

A somewhat analogous situation to that in the instant case was before this Court in National Rubber Supply Co. v. Oleson & Exter, 1915, 20 N.M. 624, 151 P. 694, 696. In that case plaintiff brought action in replevin for certain bicycle tires held by defendant as administrator of Joseph A. Nadeau. The proof showed that on October 17, 1913, plaintiff's agent took an order from Joseph A. Nadeau for the property in question. The salesman's memorandum of the transaction showed merely that the property was sold to Nadeau and further said 'ship January 1, via frt.' The tires were sold by the administrator. Plaintiff contended that it was intended that title to the property should not pass to Nadeau until payment was made for a previous shipment of material and that testimony of the salesman on this point was corroborated by the written memorandum. Judgment was entered for plaintiff...