Trustees of Town of Torreon v. Garcia

OPINION OF THE COURT [1] The plaintiff (appellant) brought suit on August 9, 1918, against a number of persons to quiet its title to the Torreon Land Grant. Answers were filed alleging, in general, among the important defenses, want of knowledge of the due election of the plaintiff board of trustees; denial that the plaintiff is the owner in fee simple and in possession of the lands involved, but alleging that the same are owned in fee simple by the defendants and other settlers of the town of Torreon, to whose ancestors and predecessors in title the land was granted by Mexico in 1841, and confirmed by Congress, setting up the granting papers; that the defendants are in adverse possession of certain described parcels, and so had been for more than ten years individually; denial of not admitted allegations; and asserting claim to their respective individual tracts within the grant; and praying that their respective individual tracts of land be quieted in them. Replies were filed, containing general denials and allegations that the predecessor board had unlawfully distributed the land on the theory that the grant was not a town grant but a grant to individuals, and that it descended to heirs who were entitled to partition, and made them deeds; and further alleged that the conveyances made by the said board were and are void. Amended replies were filed, denying the allegations of new matter in the answers, and alleging the statute under which the grant was confirmed by Congress to the town of Torreon and its successors, denying the alleged adverse possession, alleging the failure to pay taxes, and otherwise following the form of the original replies. Nearly all the defendants demurred to the amended reply as containing no defense, in part a departure, claiming estoppel of the plaintiff to question the deeds, and as constituting a collateral attack on said deeds. The defendants filed separate answers, which were virtually identical with their joint and several answers.

A final decree was entered in favor of the defendants respectively June 2, 1920.

A motion to vacate the decree was filed, and an amended motion for that purpose was made July 15, 1920, and an order was entered July 22, 1920, vacating said decree. The plaintiff then requested certain findings and conclusions, which were denied April 27, 1921, and the former decree was reinstated. The plaintiff, before the reentry of said decree, asked leave to file a second amended reply, which was refused. An amendment to the complaint was allowed by interlineation, so that it was averred that the town of Torreon, a municipality, was the owner in fee of the said grant.

Appellant relies for reversal of the cause upon certain errors assigned, urged in its brief ten points. We shall discuss such of these as seems to be necessary.

It is claimed by appellant that the court erred in overruling the demurrers to the answers of defendants. The only argument made in the brief of the appellant on this point is that the demurrers are predicated on the failures of the answers to allege the payment of taxes for the ten years as a part of the claim of defendants of adverse possession, and that "the law of 1899 defining adverse possession is a general law and is universally applicable." This is the only ground of the demurrer we will consider. See Raymond v. Holt (N.M.) 141 P. 156.

We assume that appellant alludes to chapter 63 of the Session Laws of 1899, which was "An act to amend sections 2937 and 2938 of the Compiled Laws of 1897." We think the fact that the Legislature by that act amended each of said sections with respect to the disability provisions, but only section 2938 with respect to the payment of taxes, making the payment thereof a constituent element of adverse possession, and did not amend section 2937 in this respect, indicates that it was not intended to make the requirement contained in the amendment of universal application. From the record it appears that the defendants, so far as possession was concerned, claimed under section 2937. See, also, Montoya v. Unknown Heirs of Vigil, 16 N.M. 349, 120 P. 676, wherein these two sections are differentiated.

There are a number of assignments of error which are not argued in the brief of appellant, the brief containing merely a restatement of the assignments of error. These we will not consider. In Klasner v. Klasner 23 N.M. 627, 170 P. 745, we said:

"The first, fifth, sixth, eighth, tenth, eleventh, twelfth, fourteenth, fifteenth and sixteenth assignments need not be discussed for one or the other of the following reasons: First. A portion of the assignments are not discussed in appellant's brief; the points raised by the assignments simply being stated without any attempt at discussion or citation of authorities, and it has frequently been held by both the state and territorial Supreme Courts that assignments of error, not argued by counsel in their brief, will not be considered and passed upon by this court; that when such assignments are not argued they are deemed to have been waived. (Authorities cited.) Second. The points raised by some of the assignments of error are disposed of by what is hereafter said under assignments discussed."

The foregoing rule is applicable here.

We think the alleged error of the court in refusing to allow the filing of the second amended reply, which was tendered after the case had been tried and after the decree had been vacated and set aside to permit appellant to present its further objections thereto, is ruled by Holtoff v. Freudenthal, 22 N.M. 377, 162 P. 173, where the argument to reopen the case was made upon grounds similar to those in the case at bar, and where the court decided that a discretion to grant relief of this kind must be left to the court charged with the administration of the law in the first instance. We have examined the record and find no abuse of the discretion of the trial court in this respect.

Certain of the defendants, in addition to other claims of title, claimed by virtue of tax deeds, and exception was taken as to such defendants for the reason that the lands involved, being common lands of the grant, were not taxable. We have held to the contrary in Board of Trustees of Town of Tome v. Sedillo, County Treasurer et al., 28 N.M. 53, 210 P. 102, and State v. Board of Trustees of Town of Las Vegas, 28 N.M. 237, 210 P. 101.

We come now to a consideration of the two principal contentions of defendants: (1) That the grant was a town or municipal trust, and lands held thereunder did not pass by descent; and that (2) the deeds made by the Commissioners of the Torreon Grant to the defendants or their predecessors in title were unauthorized. These will be considered together.

The following is a brief statement of the facts pertinent to the status of the grant lands taken from appellant's brief: Application for the grant was made by and in the name of 27 persons, as shown by the joint and several answers. Juridical possession was given, holding some of it free, as the townsite and commons, and allowing to each petitioner a piece to cultivate 100 varas, measured from east to west, with particular donations to a few, the boundaries being fixed. It was approved by the Surveyor General May 12, 1859, as a town grant and transmitted to Congress for action. It was confirmed as a town grant to the town of Torreon June 21, 1860. As such town it was segregated from the public domain.

We have examined the granting papers appearing in the record, and we conclude that the proceedings effectuating the grant were very similar to those described as applying to the grant described in Williams v. Lusk, 28 N.M. 146, 207 P. 576, and similar to the proceedings in the grants described in the cases therein cited:

"The Mesilla Civil Colony grant lies within what is known as the Gadsen Purchase and was based upon a decree promulgated by the President of Mexico and regulations of the state of Chihuahua. Under these regulations lands were assigned to the colony both for cultivation and for grazing purposes. As was customary under the laws of Mexico, allotments were made of numerous tracts of agricultural lands, of which the allottees became the owners in severalty, and the unallotted land was designated for the common use of all of them for grazing and other purposes. In this particular colony some two leagues of land was allotted as agricultural, and the remainder left for common use. This agricultural land was from time to time divided among the settlers, an allotment of a specific tract being made to each of them. Cultivation of the lands near Picacho, where the tract here in question was situated, was apparently carried on for many years, but a change in the course of the river made further irrigation difficult or perhaps impossible, and cultivation was abandoned. The tract here in dispute lay within these agricultural lands.

"The land which is the subject of this litigation is a part of tract No. 1. Appellee based her claim of title to it disregarding the question of possession upon a deed from the incorporation of Mesilla dated May 11, 1918, signed by its president and secretary, and which in terms conveys the land to her. Since, under the findings of the trial court, this instrument constitutes her only title, the determination of its effect must be decisive of this case. Title to allotted lands passed to the allottee. United States v. Sandoval, 167 U.S. 278, 17 S. Ct. 868,42 L. Ed. 168; Bond v. Barela, 16 N.M. 660, 120 P. 707; Id.,229 U.S. 488, 33 S. Ct. 809, 57 L. Ed. 1292. Unless, because of the breach of some condition, neither the government nor the grant authorities had any further right of disposition of, or control over them. They had the same status as other lands held in private ownership. Both the New Mexico Legislature and the Court of Private Land Claims in dealing with the Mesilla grant recognized this situation. The Legislature gave no power over such lands to the corporation it created. The court confirmed them to the corporation only as trustee for the actual owners in whom title had already vested. If the corporation acquired any title at all under this decree or under the patent it was merely as a naked trustee with no duties to perform holding the mere legal title for the real owners. Confirmation to the corporation as trustee was only a convenient method of avoiding the inquiry into the title to each allotted tract within the grant which would have been necessary to a confirmation of the particular tracts to their individual owners. Certainly under general rules of law, such a trustee could have no power of disposition, and its deed is ineffectual as a conveyance of title. The act of the Legislature, which created this corporation and upon which its authority is wholly dependent, gives it no such authority. Its rights and powers as to effectual disposition are confined absolutely to the lands held in common."

In the case at bar the plaintiff introduced in evidence the confirmatory patent from the United States of America, the original of which was dated the 9th day of April, 1908, and rested without the introduction of further testimony. There being no evidence introduced showing the boundaries of the allotted lands or the common lands within the exterior boundaries of the grant or otherwise, the court found that the plaintiff had wholly failed to prove the allegation of ownership of, and title to, the land and property described in the complaint, to wit, that certain tract of land known as the "Town of Torreon Grant," more particularly described in the complaint, and, consequently, dismissed the complaint of the plaintiff. We find no fault with that action of the trial court.

The court then proceeded to find with respect to the answers and cross-complaints of the various defendants, that each of them named in the decree is the owner in fee simple and entitled to the possession of the various tracts of land described respectively. It appears from the record that deeds, bearing in the main dates in 1909, 1910, and 1911, were made to persons interested in the grant, some of whom are defendants and some of whom were predecessors in title of certain defendants claiming title by mesne conveyances from those interested in the grant.

The following is a quotation from one of the deeds from the commissioners of the grant in controversy, which is like the others in question:

"Spanish deed, dated April 12, 1910, from Ross Garcia, Carlos Chaves, and Francisco A. Zamoro, Commissioners of the Torreon Grant, a corporation, by virtue of the act of the New Mexico Legislative Assembly, designated as title 22 of the Compiled Laws of 1897, to Tirsio Chaves, an heir of Manuel Antonio Chaves, one of the petitioners for the Town of Torreon Grant, witnesseth: That, whereas, the said Tirsio Chaves has made and presented his application to the said Commissioners of the Torreon Grant for a deed and title to a certain piece or portion of land situated within the said grant, known as the land claim of the town of Torreon, being claim No. 22 confirmed by the act of the Congress of the United States of America approved June 21, 1860 (12 Stat. 71), entitled ``An act to confirm certain private land claims in the territory of New Mexico,' which land claim has been regularly surveyed and designated as in townships 5 and 6 north, range 6 each, and townships 5 and 6 north, range 7 east, N.M., containing 14,146.11 acres, and which said grant of land was patented by the United States to the said town of Torreon and its officers, April 9, 1908, and to which patent reference hereby is made for a more complete and accurate description, and which patent is registered in the office of the clerk of the probate court and ex officio recorder, in Book No. 1, Record of Patents, page 61, a record of the county of Torrance and territory of New Mexico, and the said commissioners having examined and considered such application and finding that the said Tirsio Chaves is a person interested in the said grant, and that the land hereinafter described for which he has made application as aforesaid is for agricultural purposes, and does not exceed 190 acres; now, therefore, these presents show that the said Ross Garcia, Carlos Chaves, and Francisco A. Zamoro, Commissioners of the said Torreon Grant as aforesaid, for and in consideration of the premises, and for and by virtue of the right and authority conferred upon them and which they have and possess by law, have given, granted, transferred, and confirmed and by these presents give, grant, transfer, and confirm to the said Tirsio Chaves, and to his heirs and assigns forever, for agricultural purposes, all the following tract and parcel of land and real property situated in and within the granted land of the town of Torreon aforesaid in the county of Torrance and territory of New Mexico, to wit: Said land stands in the Canada del Cuervo; its boundaries are: On the north, common land, and on the south the wall of the grant; on the east by common land, and on the west by land of Carlos Chaves and land of Serafin Perea and common land.

"To have and to hold, the said premises above conveyed and described, together with all rights, privileges and immunities pertinent to the same belonging to the said _____ and his heirs and assigns forever."

The introduction in evidence of these deeds was resisted by appellant on the grounds that the execution of the instruments was an ultra vires act of the commissioners of the town of Torreon, for the reason that the deeds were never ratified and never approved by the judge of the district court. The assignment of error covering this alleged error is as follows:

"The said commissioners' deeds, and each of them, were illegal, ultra vires and void, and the court should not have permitted their introduction in evidence, because they severally constituted a sale or alienation of the common lands within said grant, which was not permissible under section 11, c. 42, Laws of 1907, without a resolution of the board authorizing such sale or alienation, approved by the qualified voters within the grant at an election provided for by the said law, by majority of the persons legally voting thereat, and none of such required processes was observed, nor were they made upon resolution adopted by the board of trustees, and ratified by the people and approved by the judge of the district court of the district wherein said lands lie, to wit, Torrance county, as required by section 809 of the Codification of 1915."

The deeds in question recite that the Commissioners of the Torreon Grant constitute a corporation by virtue of the act of the New Mexico Legislative Assembly designated as title 22 of the compiled laws of 1897. It recites, among other things, that by virtue of right and authority conferred upon such commissioners and which they have and possess by law, after having examined and considered the application of the party claiming title to lands within the grant, found that such applicant, being a person interested in said grant, and that the land described for which he made application is for agricultural purposes, said lands were given, granted, transferred and confirmed to the applicant, etc. The recitals in the deed were not challenged as to the truth thereof, and the deeds were not attacked upon the ground of fraud; the only assault made upon them being that they were given without being properly authorized and as not being properly ratified as required by the statutes cited in the objection. If we assume that the claim made by the commissioners that they acted for a corporation by virtue of title 22 of the Compiled Laws of 1897, and that they were acting upon authority and according to law, meant according to the law of the incorporation of the grant referred to in the deeds, we would conclude that the admission of the deeds was not subject to the objection assigned. It is not objected that the commissioners did not act for a corporation formed under the statutes of New Mexico, in fact appellant brought out on cross-examination of a witness that Chaves, Garcia, and Zamoro at the time of making the deeds were acting as commissioners or board of trustees of the town of Torreon. After the evidence was all in the court permitted the plaintiff to amend its complaint so as to allege that it sued as the "town of Torreon, a municipality." Appellant claims that this amendment was allowed to conform to the proof. Our attention has not been called to any evidence as to the date of the incorporation of such municipality or the manner of the incorporation thereof. If it was, as the commissioners claimed in the deeds, incorporated under title 22 of the Compiled Laws of 1897, and was acting pursuant thereto, then the act of 1907, and section 809, Code 1915, referred to in the assignment of error above quoted, have no application, it being noted that the act of 1907 specifically exempts from its application any grant then being managed or controlled in any manner other than herein provided by virtue of any general or special act of any legislative assembly of New Mexico. On the other hand, in the event of a sale under title 22, Compiled Laws of 1897, § 2166, a resolution was required, but no ratification by election or approval of the court, and section 2176 provides a procedure whereby a person claiming in private ownership any tract, piece or parcel of land within the exterior boundaries of the land grant, may file a petition with the trustees asking confirmation of his title, and that upon showing that his claim is sustained by the evidence, such board shall convey to the petitioner and his heirs and assigns the lands described in the petition, or so much thereof as is shown by the evidence to belong to such person. It is provided by the next section that any conveyance made in pursuance of the provisions of the preceding section shall operate to conclude all persons claiming the lands described in such petition.

So far as the record discloses, it may be that the proceedings attempted by the commissioners of the plaintiff municipality in the case at bar show some imperfections, but as we have said, no objections were made or are now made which would challenge such imperfections.

The provisions of section 2176, Compiled Laws of 1897, are very similar to certain provisions of chapter 77, Laws of 1893, being:

An act to authorize the city of Socorro and Candelario to dispose of certain real estate decreed to it and said Can delario Garcia, in trust, by the Court of Private Land Claims, and to make deeds to property owners within the limits of said grant, and for other purposes."

We have had occasion to consider the last mentioned act in connection with events similar to those in the case at ba in Crity of Socorro v. Cook, 24 N.M. 202, 173 P. 682, and we think the present case is ruled by the decision in that case, in so far as the admission in evidence of the deeds attacked are concerned, and otherwise.

Furthermore, it appears that there are a large number of defendants and cross-complainants claiming title to the lands involved; that the court decreed that their title be quieted, dividing them into more than 20 different groups; that in the main these cross-complainants supported their claim of title upon the theory that they were heirs or successors to the original allottees of the grant; that they were in possession under confirmatory conveyances from the plaintiff municipality and mesne conveyances, and that they had title by adverse possession. The only assault made on the showing of adverse possession is that payment of taxes, as a constituent element thereof, is not shown. This we have disposed of. Otherwise, appellant merely asserts that the evidence does not show adverse possession.

In Morrow v. Martinez, 27 N.M. 354, 200 P. 1071, we held that it is the duty of the trial court, in a case tried to it, to make specific findings of fact and conclusions of law sufficiently specific to enable the appellate court to review the decision upon the grounds upon which it was made below. In that case the party prevailing in the trial court alleged that he was the owner in fee simple of the premises in question, and relied upon three distinct sources of title, viz.: (1) tax proceedings; (2) court proceedings consummated in a special master's deed; and (3) adverse possession under color of title. In that case we said:

"It is a right which the successful party has to have the court make such a record as will support the judgment, and it is a right the unsuccessful party has to have the court make such a record as will enable him to review the action if he so elects."

No error is saved on the failure of the court in this respect in the case at bar. Michigan has a section similar to our section 4197, Code 1915, relative to the court's duty to make findings of fact and conclusions of law, and the Supreme court of that state has often held that in the absence of such findings and conclusions they would not examine the testimony to see whether it supports the judgment. In the case of Putts v. Davis, 50 Mich. 310, 15 N.W. 486, the court said:

"The remaining assignments of error resolve themselves into this: That the judgment should have been for the plaintiffs on the evidence. But it was for the circuit judge, and not for this court, to determine what conclusions the evidence would warrant. If plaintiffs desired a review of the whole case in this court, they should have had the facts found, as well as the conclusions of law dependent upon them, and we could then have determined whether the conclusions were well founded."

In Reymond v. Holt, supra, we held (syllabus):

"Upon the party who alleges error in the action of the court below rests the burden of showing that the judgment or decree appealed from is clearly wrong, or that error to his prejudice has been committed, and an appellate court will not search the record and review questions not raised or insisted upon in order to reverse the judgment."

In Sandoval v. Unknown Heirs of Vigil, 25 N.M. 536,185 P. 282, we said:

"Upon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the decision of the trial court."

Where no declaration of law or finding of facts are given, the theory on which the trial court decided the case not being before the court, it is incumbent on appellant to show clearly that it cannot be sustained on any theory. This the appellant has failed to do.

For the reason stated, the judgment of the trial court is affirmed; and it is so ordered.

PARKER, C.J., and WATSON, J., concur.

On Motion for Rehearing.