Harrison v. Gallegos ( 1905 )

OPINION OP THE COURT.

MILLS, C. J.

— The ease at bar is a suit in ejectment, by which the appellee, Harrison, sought to eject appellant, Gallegos, from a tract of land situated in Bernalillo, Bernalillo county, New Mexico. The plaintiff, Harrison, loaned a small sum of money to one Vicente Gallegos, and to secure the payment of such loan took from said Vicente Gallegos and his wife a mortgage on the property in question; said mortgage was dated May 9th, 1890, and was due in one year from its date. The mortgage contained a pow.er of sale authorizing the mortgagee to sell the property on default of payment being made. The mortgagor, Vicente Gallegos, died before the debt secured by the mortgage was entirely paid, and Harrison, after his death, advertised the property for sale,'and on July 27th 1898, sold it to Jose A. Jaramillo, who a few days later convejnd it to appellee.

1 The plaintiff Harrison, in the ejectment suit, bases his title on the mortgage, and the subsequent sale by him under the power of sale contained in such mortgage deed and the conveyance thereafter made. It nowhere appears in the record, unless it can be assumed from the fact that he made the mortgage, that Vicente Gallegos, the mortgagor, was the owner of or that he was in possession of the property mortgaged, nor does it anywhere appear that the appellant herein, Antonio Gallegos, claimed the real estate in controversy, of which he was in possession at the time this suit was brought, through the mortgagor. From all that appears in the record he may have derived his title, if he has any, from parties entirely outside of those mentioned in this proceeding.

To show that the appellee held a mortgage on the land in question, of which land he, the mortgagee, was never in actual possession, is far from showing that the mortgagors had title to it. If both parties to this suit claimed title from a common source, to-wit.: Vicente Gallegos, then the sale under the mortgage deed if properly made would have been sufficient to convey title, but the defendant, Antonio Gallegos, offered no evidence, nor was any introduced to show from whom he claimed title, and we cannot assume that he claimed it from the mortgagor, Vicente Gallegos.

It 'is well settled, “that in actions of ejectment the plaintiff must recover on the strength of his own title, and show that he had title to the particular land in dispute.” Maxwell Land Grant Co. v. Dawson, 7 N. M. 133; Henderson v. Wanamaker, 79 Fed. 736; Union Pac. Ry. Co., v. Reed, 80 Fed. 234, and this court has also decided that the “possession of the defendant gives him a right against every person who cannot establish a title. This is a general rule, to which there is no exception,” Salazar v. Longwell, 5 N. M. 548.

2! A plaintiff in ejectment, even when the title is derived from a common source must show a better one than that of the defendant; or an actual possession prior to that of the defendant in order to put the defend-

ant to the necessity of supporting his possession by a title superior to one of naked possession. L’Engle v. Reed, 9 South, 213; Miller v. L. I. R. R. Co., 71, N. Y. 380; Smith v. Bryan, 74 Ind., 515; Peck v. L. A. R. R. Co., 101 Ind., 366; Summers v. Spratt, 20 Fla. 495; Hall v. Giddings, 2 Har. & J. 112; Railway Co. v. Loring, 51 Fed. 932; Building Assn. v. Schall, 107 Ala. 531.

In this case on account of the failure of the plaintiff to prove that the parties who made the mortgage to him were the owners of or in the actual possession of the land, or that both the defendant and himself claimed title from a common source, to-wit, the mortgagor, we do not think that the plaintiff proved a title superior to that of the defendant, who was in actual possession such as would warrant a judgment in his favor.

Further, the record nowhere discloses that the defendant, Antonio Gallegos, owed plaintiff Harrison any money, except that claimed as damages for the detention of the land in controversy, and in this case the judgment does not give Harrison the possession of such land. The judgment is found on page 20 of the transcript of record, and reads as follows, to-wit: “It is therefore considered by the court that the said George W. Harrison, recover from the said Antonio Gallegos the said sum of one cent, as heretofore, by the verdict of the jury found due him, with interest from April 19th, 1902, together with his costs herein expended, and that he have execution therefor.”

The errors assigned make no objection to the form of the judgment, and we simply point it out to counsel, because in our opinion it does not conform with the pleadings. Even if the judgment below was affirmed by us, it would not give Harrison the possession of the land.

This action was primarily to recover possession of real estate, and unless the judgment gives the plaintiff such real estate he cannot recover damages, even in the small sum of one cent, for its detention.

Eor the reasons given above this cause is reversed and remanded to the district court of Bernalillo county for further .proceedings, and it is so ordered.

John R. McFie, A. J., Frank W. Parker, A. J., Wm. H. Pope, A. J., Edward A. Mann, A. J., concur. Baker, A. J., having tried the cause below took no part in this decision.