Wolford v. Martinez

• Decision Date: 29 May 1923
• Docket Number: No. 2696.,2696.
• Citation: 28 N.M. 622,216 P. 499
• Parties: WOLFORDv.MARTINEZ ET AL.
• Court: New Mexico Supreme Court

28 N.M. 622

216 P. 499

WOLFORD

v.MARTINEZ ET AL.

No. 2696.

Supreme Court of New Mexico.

May 29, 1923.Rehearing Denied June 15, 1923.

Syllabus by the Court.

When it is shown that the title of any person to negotiable paper is defective, the burden shifts to and rests upon the holder thereof to show that he, or some person under whom he holds, acquired the same in good faith, for value, and without notice of any infirmity in such paper or of any defect in the title of the person negotiating it.

The right to recover a bank draft which is lost in a gambling game, as provided in section 2510, Code 1915, does not include the right to recover from a holder thereof in due course without notice of such facts.

Appeal from District Court, Union County; Leib, Judge.

Suit by Jabe Wolford against J. B. Martinez, the Farmers' State Bank of Texhoma, Okl., and others. From a judgment for defendant bank, plaintiff appeals. Reversed and remanded, with directions.

When it is shown that the title of any person to negotiable paper is defective, the burden shifts to and rests upon the holder thereof to show that he, or some person under whom he holds, acquired the same in good faith, for value, and without notice of any infirmity in such paper or of any defect in the title of the person negotiating it.

Joseph Gill, of Clayton, for appellant.

O. T. Toombs, of Clayton, for appellee Farmers' State Bank of Texhoma, Okl.

BRATTON, J.

This suit was instituted by the appellant, Jabe Wolford, against J. B. Martinez, J. W. Campbell, Mrs. J. W. Campbell, and Farmers' State Bank of Texhoma, Okl., to cancel, annul, and declare void a certain bank exchange, hereinafter described, to restrain the appellees from further negotiating such exchange, and to compel the surrender of the same.

It was charged in the complaint that on or about December 13, 1920, at Clayton, N. M., the appellant and the appellee J. W. Campbell engaged in a gambling game, to wit, poker, during which the appellant lost to the said Campbell all of the money he then had; that thereupon the appellee J. B. Martinez induced him to procure a bank draft for $500 with which to further play at said game in an effort to recoup such losses; that he thereupon gave his check in the sum of $500 to the said Martinez, with directions that he purchase therewith from the Clayton National Bank bank draft or exchange for that amount; that the said Martinez did purchase from such bank exchange upon the First National Bank of Denver, Colo., in the sum of $500, payable to the order of the said Martinez; that such exchange was the property of the appellant, and that the said Martinez delivered the same to him; that he then placed the same as stakes in said game, and lost it to the appellee J. W. Campbell; that the said J. W. Campbell and the said J. B. Martinez, knowing the appellant intended to stop payment on said exchange, delivered the same to appellee Mrs. J. W. Campbell, and sent her, together with one J. J. Myers, to the appellee Farmers' State Bank of Texhoma, Okl., for the purpose of cashing and collecting the same; that the said bank knew the said J. J. Myers was by profession a gambler and of low moral character; that said bank cashed such exchange; that payment thereof by the First National Bank of Denver had been stopped and that the Farmers' State Bank of Texhoma still held the same. The appellant prayed that said exchange be declared null and void, that it be canceled, that the appellees, and each of them, be restrained from further negotiating the same, and that the appellee Farmers' State Bank of Texhoma be required to surrender the same for such cancellation.

The appellee bank demurred to this complaint upon numerous grounds. The court sustained the demurrer, reciting in the order that such bank was, under the facts pleaded, the lawful holder and owner in due course of such draft. The appellant elected to stand upon his complaint, and the judgment was thereupon rendered in favor of the bank, from which this appeal has been perfected.

Section 2507, Code 1915, provides for the recovery of money or property which may be lost at any game at cards or any gambling advice. It is in this language:

“Any person who shall lose any money or property at any game at cards, or at any gambling device, may recover the same by action of debt, if money; if property, by action of trover, replevin or detinue.”

Section 2510 provides that all judgments, securities, bonds, bills, notes, or conveyances which are won at gambling shall be void, and may be set aside or vacated by any court of equity upon a bill filed for that purpose by the person giving the same, as well as certain others. This section thus provides:

“All judgments, securities, bonds, bills, notes or conveyances, when the consideration is money or property won at gambling, or at any game or gambling device, shall be void, and may be set aside or vacated by any court of equity upon a bill filed for that purpose, by the person so granting, giving, entering into, or executing the same or by any creditor or by his executors, administrators, or by any heir, purchaser or other persons interested therein.”

We think this section is broad enough to include bank drafts or bank exchange. The statute is very comprehensive, and was designed to discourage gambling by depriving the person winning any of the things therein enumerated of any title thereto, and by providing the right to recover the same, not only to the person losing the same, but to his wife, children, heirs, executors, administrators, and even his creditors. The territorial court, in speaking of these statutes in Mann v. Gordon, 15 N. M. 652, 110 Pac. 1043, said:

“And the right to recover money lost or to avoid any bond, etc., given in consideration of money lost at gambling is given not only to the person but to his wife, children, heirs, executors, administrators and creditors.

So it will be...