Weeks v. Bailey

• Decision Date: 30 July 1927
• Docket Number: No. 3133.,3133.
• Citation: 263 P. 29,33 N.M. 193
• Parties: WEEKSv.BAILEY et al.
• Court: New Mexico Supreme Court

33 N.M. 193

263 P. 29

WEEKS

v.BAILEY et al.

No. 3133.

Supreme Court of New Mexico.

July 30, 1927.Rehearing Denied Jan. 27, 1928.

Syllabus by the Court.

The court will not disturb findings of fact, where there is any substantial dispute upon the evidence.

A finding sustained by circumstantial or presumptive evidence will not be disturbed on appeal.

Where grantor's signature to a deed is proved, that it is his handwriting, and has been duly acknowledged, and possession of such deed by the grantee is shown, the delivery of the deed is presumed.

Additional Syllabus by Editorial Staff.

Evidence should be distinguished from “testimony,” which is that species of evidence which is produced through language of witnesses (citing Words and Phrases, First Series, “Presumptive Evidence”).

Appeal from District Court, Doña Ana County; Ed Mechem, Judge.

Ejectment by W. R. Weeks against Blanche B. Bailey and another. From a judgment for plaintiff, defendant Bailey appeals. Affirmed, with directions, on condition of a remittitur.

“Evidence” should be distinguished from “testimony,” which is evidence produced through language of witnesses.

R. J. Channell and Medler & Whatley, all of El Paso, Tex., for appellant.

E. F. Cameron and F. C. Knollenberg, both of El Paso, Tex., for appellee.

BICKLEY, J.

Appellee, Dudley R. Weeks, brought a suit in ejectment against Blanche B. Bailey and Jose Flores for a certain tract of 19.57 acres of land and for damages for its use. Appellant Blanche Bailey and her codefendant, Jose Flores, answered by denying the plaintiff's right and title to the land, and said that appellee claimed through a deed executed, but not delivered, but stolen, and set up in a cross-complaint that Blanche Bailey is owner of the tract and Jose Flores was her tenant; that the deed under which appellee claimed was purloined and placed of record; and prayed that her title be quieted. To the cross-complaint plaintiff replied, admitting that he claimed through the deed referred to, dated February 17, 1914, but denied that it was stolen and denied all other allegations in the cross-complaint, and prayed that his title be quieted. Upon the trial, the court rendered judgment finding, adjudging, and decreeing that the plaintiff was the owner of an undivided seven-eighths interest in the land and Blanche Bailey of an undivided one-eighth interest and that Jose Flores had no interest therein, and, further, giving appellee (plaintiff) judgment against both of the defendants for rental value of the land for 1922, 1923, and 1924, in a total sum of $684.95. Only the defendant (appellant) Blanche Bailey objected to the finding of the court, and only the said Blanche Bailey perfected this appeal. In 1912, J. A. Coggin deeded lands in Dona Ana county by a certain deed to three grantees, as follows: Three-eighths to E. W. Parker, four-eighths, to R. C. Bailey, and one-eighth to M. P. Martin, which deed was recorded and forms the basis of title to both the appellant and the appellee. These three grantees were engaged in the joint venture of buying and selling lands. On February 17, 1914, R. C. Bailey and E. W. Parker executed and acknowledged a deed, conveying to M. P. Martin tract No. 1 of 4.48 acres, tract No. 2 of 39.45 acres, and tract No. 3 (which is the tract involved in this suit) of 19.57 acres. This is the deed alleged by appellant never to have been delivered. On February 17, 1914, M. P. Martin gave to E. W. Parker a mortgage on tract 2 of 39.45 acres to secure notes aggregating $5,625. A portion of this mortgage debt was paid, and the remainder of the notes were sued upon, the mortgage foreclosed, and the land bought in by E. W. Parker. On December 16, 1914, M. P. Martin assigned to E. W. Parker a mortgage, dated March 24, 1914, given by Mrs. E. Endres to said M. P. Martin upon tract No. 1 of 4.48 acres. This mortgage was foreclosed by E. W. Parker, and upon the sale, the land purchased by Parker.

The tract of 19.57 acres, being tract No. 3 and the land in controversy, was transferred by deed from Martin to Casad; Martin taking a mortgage for a part of the purchase price. This mortgage and the note thereby secured was assigned to John Robson, who afterwards foreclosed the mortgage aforesaid, and at the foreclosure sale Robson purchased the property and received a commissioner's deed therefor. Robson conveyed the land involved to Knollenberg, and Knollenberg conveyed to the plaintiff (appellee), Weeks. Appellee claims that this placed the title in appellee and also that he became the owner through a chain of title commencing with tax deeds from the treasurer of Dona Ana county. In view of the conclusion we reach, it is unnecessary to consider the status of the tax deeds. The defendant Blanche Bailey deraigned her title through mesne conveyances from her brother, R. C. Bailey.

The court found that the deed from E. W. Parker and R. C. Bailey to M. P. Martin to an undivided seven-eighths interest in the land described in the petition was executed by the parties and delivered to M. P. Martin. Defendant tendered a finding that the deed of E. W. Parker and R. C. Bailey to M. P. Martin for a seven-eighths interest in the land in controversy was signed by said R. C. Bailey as one of the grantors therein, but was never delivered by said R. C. Bailey to M. P. Martin therein, and that said deed was, without the knowledge or consent of the said R. C. Bailey as a grantor therein, surreptitiously abstracted from his office and thereafter placed of record in the recorder's office. This tendered finding was refused by the court.

Appellant assigns as error the refusal of the court to make said finding requested by her and that the court erred in finding on behalf of the plaintiff that the deed in question was executed and delivered, and claims that there was no substantial or other evidence in the record to support such finding and that such finding is contrary to the evidence and the weight thereof. Appellant states in her brief that these alleged errors of the trial court present the main point in this case.

[3][4] Appellant says that the only testimony upon the question of the delivery of the deed in question is the evidence of the witnesses, R. C. Bailey and W. H. Winters, which evidence appellant claims establishes beyond a doubt that there was no delivery, in fact or in law. It is true that the only testimony was that alluded to by appellant, but it cannot be said that such was the only evidence. Evidence is to be distinguished from testimony, which is that species of evidence which is produced through the language of the witness. Enc. of Evidence, vol. 5, p. 302. 1 Bouv. Law Dict. p. 1092, title “Evidence,” thus classifies evidence as to its nature: (1) Direct; (2) presumptive; (3) circumstantial. “The term ‘presumptive evidence’ is sometimes used to designate what is ordinarily known as circumstantial evidence.” See 6 Words and Phrases, First Series, p. 5541, “Presumptive Evidence.”

Mr. Best, in his valuable work on Evidence, says that:

“Presumptions or presumptive evidence is as original as is direct evidence, and that the presumption of a fact is as good as any other proof of such fact, when the presumption is legitimate.” See 6 Words and Phrases, First Series, p. 5541, citing Jones v. Granite State Fire Ins. Co., 90 Me. 40, 37 A. 326, 328.

The learned law writer, Prof. John D. Lawson, wrote a book on, “The Law of Presumptive Evidence.” Rule 18, which he lays down, is as follows:

“Documents regular on their face are presumed to have been properly executed, and to have undergone all formalities essential to their validity.”

And under this rule an illustration is given, as follows:

“A person's signature to a deed is proved, i. e., that it is his handwriting. The sealing and delivery of the deed is presumed.”

In Devlin on Deeds (3d Ed.) § 294, it is said:

“ Possession of Deed by Grantee Affords Presumption of Delivery.-The possession of a deed, duly executed in the hands of the grantee is prima facie, but not conclusive evidence of its delivery. It therefore follows that he who disputes this presumption has the burden of proof, and must show that there has been no delivery. And not only must...