No. 993 | N.M. | Feb 26, 1903
OPINION OF THE COURT.
An examination of the transcript will show, not only that the court had ample evidence on which to base the finding that these claims were .originally located with the name of Henry Lockhart on the location notices, and that said Lockhart afterwards substituted the name of his wife for his own, but it seems to us that a preponderance of the evidence so shows. Whether or not Henry Lockhart made the substitution with the view of preventing his judgment creditors from levying on his interest in said mining claims, is not of necessity proved by direct evidence, but had to be gathered from the consideration of all of the evidence adduced at the hearing. The proofs show that from the first, when Lockhart went into business in Erie, Pennsylvania, down to the time that this suit was tried, he had always been struggling with debts incurred in the various business enterprises in which he was engaged. From a consideration of the entire evidence we are of the opinion that the trial court was perfectly justified in making this finding and therefore under the law announced by this court in the case of Badaracco v. Badaracco, 10 N. M. 761, to sustain which rule many cases decided by this court are therein cited, this finding of the court will be sustained.
Finding Number six, which is in substance, that J. D. May located the other three mines in the Cochiti district to-wit: “The Giant,” “Bull if the Woods,” and “Crown Point,” and that on such mining claims, there was written on the posted location notices, the name of “Henry Lockhart” along with the names of the other parties who had interests in said claims; that the claims were so located under a contract and agreement between Ben Johnson, acting for Charles Johnson, Henry Lock-hart and J. D. May, and that the said Henry Lockhart had an undivided one-fourth interest in said claims, is we think amply sustained by the evidence, as the witnesses May and Ben Johnson swear to it. Accordingly therefore, this finding of the court is sustained.
In making finding number eleven, we think that the court committed no error, as there is ample evidence to sustain it.
Findings numbers twelve and thirteen, are in substance that the interests of both Henry Lockhart and his wife Ellen L., in the several mines in question and also in the stock of the Crown Point Mining Company are community property, acquired by them, subsequent to their marriage and subsequent to their removal to New Mexico; and that the two judgments in favor of Cony T. Brown, receiver, are community debts, and that no part of the interest of Ellen L. Lockhart in said mining claims or in the stock of the Crown Point Mining-Company, is.her separate property, nor the avails of any property possessed by her prior to her marriage to Henry Lockhart, or prior to her coming to New Mexico'; and finding No. 17, is in Substance, that if Henry Lock-hart ever became indebted to his wife, on account of her separate estate, such separate estate became confused, intermixed and commingled with the community property, so that such separate property lost its identity. The evidence shows that the Lockharts were married in the State of Pennsylvania in the year 1874 and that they came to New Mexico in 1888. Previous to. coming to this Territory, Henry Lockhart, had been engaged in numerous business enterprises in Pennsylvania — selling books, confectionery and cigars, running several drugstores, conducting a saloon, a hotel, etc., and his wife had also run a hotel there. In New Mexico, outside of mining ventures, they have run hotels at Socorro and Albuquerque, and Lockhart has also been an insurance agent and a justice of the peace. Mrs. Lockhart claims to have brought with her when she came to NewMexico, the sum of $14,000 which she inherited from her father. But what she did with this money nowhere appears. She testified that she did not put it into the bank, as she was suspicious of private banks. It still may be safely hoarded away, for all that appears to the contrary in the record. Certainly the evidence shows that the interests in the mines and mining stock was community property, as it was acquired by the joint labor of Henry and his wife in this Territory after their marriage.
If any of her alleged $14,000 went into these mining enterprises, we fail to trace it, and if it did, it became so commingled and intermixed with their community property that it cannot be distinguished. Ballinger says, in note to see. 167: “Where the property has not been preserved in specie or in kind, but has undergone mutations and changes, it is indispensible to maintain its separate charcter, that it be clearly and, indisputably traced and identified.” <
There is no error in these three findings made by the trial court.
In finding number sixteen, the court holds that the evidence fails to show that any. part of the separate property or money of Ellen L. Lockhart, or the proceeds thereof, for which it is claimed Henry Lockhart was indebted to his wife, was ever invested in said mining claims or the stock of the Crown Point Mining Company.
Our rulings upon the other exceptions, practically cover this one. The court having held that the money which went into the mining claims and the stock of the Crown Point Mining Company, was acquest property, could make no other finding than this one. It may not have been necessary to make it, but there is no error in it. If the money invested in the mining claims, as held by the court, was community property, certainly it could not have been tbe separate property of Ellen L. Lock-hart.
There being no error in the decree complained of, the same is therefore affirmed; and it is so ordered.