White v. Mayo

• Decision Date: 15 April 1931
• Docket Number: No. 3551.,3551.
• Citation: 35 N.M. 430,299 P. 1068
• Parties: WHITE et al.v.MAYO et al.
• Court: New Mexico Supreme Court

35 N.M. 430

299 P. 1068

WHITE et al.

v.MAYO et al.

No. 3551.

Supreme Court of New Mexico.

April 15, 1931.Rehearing Denied June 18, 1931.

Syllabus by the Court.

Widow, upon making final proof and receiving patent to homestead entered by deceased husband under federal homestead laws, takes title to exclusion of heirs.

Where the widow makes final proof and receives patent to a homestead entered by her deceased husband, under the federal homestead laws, the heirs have no interest therein.

Statute providing that certain personalty of deceased husband be set apart to widow vests in widow unqualified right to such property upon husband's death (Comp. St. 1929, § 38-107).

Section 1421, Comp. Laws 1884, as amended by section 21, c. 90, Laws 1889 (section 38-107, 1929 Comp.), which provides that certain personal property of the deceased husband shall be set apart to the widow as her property, construed and held to vest in the widow an unqualified right to the property immediately upon the husband's death.

Declarations of deceased grantee who held legal title, to support resulting trust, must be direct and certain, and to be controlling, must be corroborated.

Declarations of deceased grantee who held legal title to property, to support a resulting trust, must be direct and certain, and to be controlling should be corroborated by other facts and circumstances.

To establish implied trust, parol evidence must be clear and unequivocal and distinctly prove facts necessary; parol evidence to establish resulting trust, where only part of purchase money was paid, must show exact portion of price paid.

Parol evidence to establish an implied trust must be clear and unequivocal and such as goes distinctly to prove the facts necessary to create a trust, and where only part of the purchase money is claimed, the evidence must show the exact portion of the entire price paid.

Evidence held insufficient to establish resulting trust in plaintiffs' favor in property acquired in part with proceeds of property of deceased father.

Evidence held not sufficient to establish an implied trust.

Appeal from District Court, Colfax County; Kiker, Judge.

Suit by Marion White and another against William H. Mayo and another, wherein John E. Mayo and Lillie J. Clement were substituted as parties defendant for William H. Mayo, and Miles E. Hopkins was permitted to intervene. From the judgment rendered, the substituted defendants and the intervener appeal.

Reversed and cause remanded with instructions.

Evidence held not sufficient to establish an implied trust.

L. S. Wilson, of Raton, for appellants.

J. Leahy, of Raton, for appellees.

HUDSPETH, J.

The former appeal of this cause is reported as White et al. v. Mayo et al. in 31 N. M. 366, 246 P. 910, where the second amended complaint was held to state a cause of action. The allegations of the second amended complaint are fully set out in the former opinion. After the case had been remanded, Miles E. Hopkins, who purchased the land in San Juan county from John E. Mayo after lis pendens had been filed in the office of the county clerk of said county, was permitted to intervene.

The issues upon which the trial was had were made by the second amended complaint, the first amended answer thereto and a reply, petition in intervention and answer thereto. The court rendered judgment in favor of the plaintiffs and against the defendant Lille J. Clement for $1,844.61 and directed that certain moneys of the estate impounded in the hands of the clerk of the court be paid thereon and judgment in rem upon the land situate in San Juan county, described in the second amended complaint, against John E. Mayo and Miles E. Hopkins for the balance, after applying the funds impounded on the judgment, dismissed as to defendant Griggs. The defendants Lillie J. Clement and John E. Mayo and intervener Hopkins appealed.

Both plaintiffs and defendants submitted findings of fact and conclusions of law; all findings of fact as well as conclusions of law submitted by counsel for plaintiffs were approved and adopted by the court.

The court found that Henry C. White in the year 1891 made a homestead entry under the public land laws of the United States on 160 acres of land situate in Colfax county, N. M., and made improvements thereon of the value of $300, and died intestate in 1892 or 1893 leaving as his heirs the plaintiffs, Lillie George, a daughter, who was born April 17, 1875, and Marion White, a son, born February 24, 1886, and Kosiah L. White, his widow; that the widow made final proof on said homestead, as his widow, and obtained patent thereto. Parts of the findings of fact follow:

“The court also finds that said Henry C. White, at the time of his death left besides the improvements on said land, other personal property consisting of two yoke of oxen, two wagons, one cow, chickens, household & kitchen furniture, etc., and that said other personal property was of the value of $300.00 and that all of said other personal property so left, was the Community property of said Henry C. White and Kosiah L. White.”

“That the total value of said property at the time of the death of Henry C. White was $800.00 and that his widow Kosiah L. White appropriated the same and disposed of it without any legal procedure had thereon.”

“That said Kosiah L. White was married to said Wm. H. Mayo in June 1895, and that at the time thereof, or very soon thereafter, she had $600.00 which she obtained from the sale of the personal property which belonged to her and said Henry C. White, at the time of his death, and that the same was at that time community property, and that she gave this money to William H. Mayo to be invested by him for the benefit of herself and plaintiffs, and that at the time of so doing, the plaintiffs were minors.”

“That said Wm. H. Mayo, sometime in November 1896, acting under the authority of his then wife, Kosiah L. Mayo, bought from Bart Nauta, a contract that he had with the Maxwell Land Grant Co., for 80 acres of land described in the second amended complaint, and that he agreed to pay said Nauta the sum of $500 for his equity in said land and to pay the Maxwell Land Grant Co., the sum of $320 for said land, with interest on the deferred payments to said Land Grant Co., and that said William H. Mayo and wife began their farming operations upon the said Nauta land and used the money so received from the Henry C. White property in their investment in land and farming operations, and made the payments to the Maxwell Land Grant Company annually until they completed the payments therefor in the year 1905.”

“That in the year 1898, the said Kosiah L. Mayo and Wm. H. Mayo executed a deed to one Wm. K. Irwin, the record of which deed is one of plaintiffs' exhibits herein, conveying to said Irwin the Henry C. White homestead, heretofore described; and that theretofore they had sold said homestead to said Irwin, together with the improvements put thereon by said Henry C. White, for the sum of $500.00, and that $300 thereof were paid for said improvements which were moved from said land before said deed was given; and that said Kosiah L. Mayo and Wm. H. Mayo at the time of making of said deed, and in order to satisfy the said Irwin and conclude this sale with him procured the signatures of plaintiffs herein to said deed by verbally promising them that the said $800.00, the total received from the White property, would be invested for the benefit of plaintiffs and their mother, and that said Kosiah L. Mayo and Wm. H. Mayo then and there verbally promised plaintiffs to allow to, and invest and protect for, plaintiffs their interest in the proceeds of the property of Henry C. White, the same as though Henry C. White had died seized of title to said homestead land; and said Wm. H. Mayo and Kosiah Mayo did so invest said moneys.”

“That said Kosiah L. Mayo and Wm. H. Mayo invested with the said $600.00 so received from the sale of the Henry C. White personal property and the said $200.00 received from said Irwin for said homestead, and also that very soon thereafter Wm. H. Mayo added to their investments an additional $300.00 of his separate property, making a total sum of $1100.00 which they kept investing and reinvesting in the buying and selling of real and personal properties, until in the month of August, 1920, when they ceased operations with the said $1100.00, and that by said investments and reinvestments, they had accumulated the sum of $5210.52 in August, 1920, and which was invested as follows: ***

“That the total amount received by the sale of the property left by Henry C. White at the time of his death, including the homestead entry for which patent was later issued to Kosiah L. Mayo, was the sum of $800.00. Of this sum, $600.00 was the proceeds of the personal property, in which plaintiffs had a 3/8 interest; and upon the sale of the homestead, so patented to Kosiah L. Mayo, the said William H. Mayo and Kosiah L. Mayo recognized that the plaintiffs had an interest in the proceeds of said land as the heirs of said Henry C. White, and promised and agreed to set apart to, and hold and invest for, plaintiffs an interest in the proceeds of said land equal to that which would have been theirs had said Henry C. White died seized of said land; and that the total amount of money so invested by William H. Mayo and Kosiah L. Mayo as the proceeds of the property of Henry C. White and his wife Kosiah, was the sum of $800.00, in which, by virtue of operation of law, and by virtue of the verbal promises and agreements and recognition of the said William H. Mayo and Kosiah L. Mayo, the plaintiffs had a three-eighths undivided interest; and that of the total investment of $1100.00, the plaintiffs had a three-elevenths interest therein, and that said investment, by earnings and accumulations, amounted, in August, 1920, to the sum of $5210.52, a part of which was evidenced by promissory note bearing interest.”

“That...