*1 P.2d al. et HADEN et al. v. EAVES al. et
HADEN et al. v. MANGHAM 5302.
No. New Mexico. Court of 10, 1950.
Oct.
Rehearing- Jan. Denied *2 Brand, Hobbs, Ward, Robert R. W.
John Lovington, appellants. for Atwood, Roswell, Campbell, & Malone appellees. for McGHEE, Justice. appeals judgments
We have from ren- in 7865 dered cases numbered 8147 in County. the District Court of Lea In the first, son, O. T. Haden and minor Haden, Oswald sued Rose Gail Eaves In the second sued others. Thelma V. In each O. T. Mangham and others. 'case quiet sought title a one-six- Haden half of the east Section teenth interest in Range East, 1, Township 17 38 South quiet sought minor to an title three-sixteenth undivided land. same stipulation, parties in case 8147 interest By half section for agreed in case name to be bound the decision of “Charles Estate.” Canada J. consolidated, though 4, 1938, Mang- On February Thelma V. parties have the latter suit should paid ham county to the treasurer the amount right case 7865. on record due for acre interest on a taxes IO614 and con- The cases have been consolidated section, paid half and in addition appeal. We will refer sidered here as one proportionate amount due on a acre parties appeared below. as they Weatherby interest then owned W. C. The trial court held that certificate upon which she held a tax sale had claimed lost their title to interests the time. at year reason a sale taxes for the Can- The tax authorities allowed Mrs. 1937 on account tax deed was of which a exemption as of a head ada’s claim .acquired by Mangham. Thelma It also V. due on for the amount of taxes family that O. T. Haden had abandoned the found interest, of the amount so one-fourth Judg- guilty ^property and was of laches. of the treas- still due on the books fax was cross-complaints rendered ments were *3 urer. their titles quieting defendants some of Mangham Hadens. day the V. the same Thelma On out, payments as above set tax made the surviving the son and his Haden .Eaves, predecessor conveyed to she S. J. Cleo of child, respectively, and husband Eaves, an undivided in interest of Rose 1%2 time who, Haden, at Canada Ora in the half section. interest one-fourth undivided death, an owned her described. above section half in the interest interest in the undivided one-fourth An Canada, and brother, Charley Her Jefferson sold for the amount of half section was and Willie Mangham sisters, V. Thelma her by the sale Thel delinquent taxes. After interest like a Canada, each owned Clifton Mangham of the interest ma V. u/£2 rendered for it was time land at in Eaves, purchased a tax sale certificate she acreage shortage of to a Due taxes. interest. On March 77.66 acre for such actually amounted to interest one-fourth a acquired 1941, tax deed for 31, she a acres. 77.66 in the certificate. There described interest certificate or in the deed to in nothing the entire is rendered Mangham V. Thelma ownership of the interest sold. year 1937 dicate for the taxes section half part of acreage this sold later sister, Clifton She name, Willie her and in Eaves. undivided one-fourth Canada, rendered
The trial
that Thel-
court
fact
times that
will
found
cases
be reviewed here on
theory
they
presented
were
Mangham
ma V.
decided
did not own
below. N.
Gann,
H. Ranch Co.
v.
N.M.
in
time she ac-
the half section at the
632;
Atchison,
Horton
P.2d
v.
T.
quired
deed, and
the tax
certificate or
sale
Ry. Co.,
& S.
F.
34 N.M.
288 P.
concluded
at
times
she
not
such
that
and Park Milligan,
v.
27 N.M.
196 P.
a co-tenant of
the other
the owners.of
fractional interests.
Is the minor
by
defendant bound
the act
After the
case we in-
submission of the
of his
ad litem requesting
supplemental
parties
vited the
to submit
finding
by
assignments
latter’s
question
the in-
briefs on the
of whether
error,
may
so we
question
consider the
through
lost
plaintiffs
terests
were
raised by the court of its own motion?
therefore, had
they,
the tax sale and that
point
was not
parties,
briefed
loss,
whether all co-
bear the entire
but we have made
study
question.
part of the half
proportionate
tenants lost a
This
Salazar,
court
Ortiz v.
1 N.M.
were filed
have
section. Such briefs
355, on its own initiative ordered interest
the case.
considered
the others
with
a judgment
added to
granted
appellee
appellant
the time the
used
money
our atten
The defendants call
during minority. Cf. Bent Miranda,
tried be
tion
that
case was
fact
78, 85,
8 N.M.
question are set few of review a them. 660, and 977, A.L.R. 917, 87 Mo. 55 S.W.2d 288, Company, 287, Brewing Cleveland, Byrnes Butte In Tillar Ark v. v. 440, 1913B, equit- Ann.Cas. 119 P. S.W. Mont. Tillar was the Mrs. are bound infants holding that able lot on her death are owner of a listed However, a heir; only adults. rules as son was her the father by the same but they lend shows study'of agreement cases son with these into an entered Spotts whereby In the it was legal rule. support to such holder title little there money agreed record upon that certain deficient a payment case there was the statute conveyed with compliance to the father of lot would be been not (cid:127)had motion exceptions owner of the minor. Suit was requiring formal filed holding to Many legal cases lien and the in- title to foreclose a trial. for new it opinion, and party. fant The father defend- was made a contrary are discussed equity among had been usury, case de- ground if the ed other said is that a trial de fenses, adopted have all were would of which where there considered have taken to guardian would litem. An was ad novo, the Revely Skinner, citing errors, Court, but the minor was claimed appellate its party court on thereto. 98.Mo. own motion noticed that father quali- Byrnes case opinion owner of the erroneously to be the decreed court was statement by the fied minor, said: “The lot instead case, negligence considering a not, by arrangement father enter- could competent coun- by. represented minor title, legal with the holder of into ed committed error substantial and no sel minor appropriate property of child. him. against commonly com- errors do not correct We juris- many from various cases There appeal- parties who have not against mitted appellate court will that an holding dictions guardian ed; is the the chancellor but judgment or decree erroneous permit ques- are drawn infants whose all stand, notwithstanding duty him, it is our see a minor tion before protected.” they are litem to that ad failure of
45 526, 31 Dooley, appears S.W. ants a minor. It Kempner 60 Ark. was also v. guardian properly indebted- ad 145, 147, a suit to secure an litem failed to was had protect the tracts. appeal of of his record. the court the owner one On ness of erroneously land of stated: The decree ordered min- first, tract a surety and in this sold one “It must also be borne in mind that party defend-. or an interest was a had infant, and there- defendants was an appealed principal debtor on ant. The duty equity fore ‘it was the of a of to trial court had
ground that the
refused
pro-
to see that the
minors
interests of
are
at the close
to amend
answer
allow him
it,
tected in suits before
the claim
whether
plead usury. The
of
trial and
not;
properly pleaded
or defense be
or
of the amendment
Court held
allowance
purpose the
for this
chancellor should look
the trial
in the discretion of
a matter
was
parts,
record in all
and of his
its
against
no-
error
the minor
court.
give
own motion
the benefit
the minors
although
appealed,
had
and the
he
ticed
objections
exceptions appearing
all
of
however,
case,
“In
there
court stated:
thereon,
pleaded.’
(Citing
if specially
that Allen
appeal
is
from
decree
no
cases.)
by any
be first sold
land should
of
Adams’
appeal, and
“The same rule
on
obtains
Allen
But one of these
of
Adams.
the heirs
appellate
protect
court will
party
made a
the suit was
heirs who
infants, although
excep-
objection
no
decree, and
at the time of the
an infant
taken,
though
tion
and even
there is no
appealed,
and,
she
is,
though
has
still
part
Ency.
appeal on the
10
the infant.
interest,
will
chancery
court of
679, PL
Pr.
authorities cited in
&
equity
wards of
in a suit
are
as minors
notes.”
chancery.
chancellor is the
‘The
a court
Mining
Harris,
Coal
rights are
Glade
Co. v.
W.
guardian
all infants whose
873,
him,
leading
63 S.E.
is a
case
it is our Va.
question before
drawn in
Specific
subject.
performance
Tillar
of a
protected.’
duty
on
to see
v.
Cleveland,
Ark.
[287]
S.W.
516. contract
convey
coal made
during
sought.
the then fee owner was
ordering
the interest
lifetime
the error
For
heirs were made
but did
Adams’ land Minor
defendants
heir in the Allen
the minor
judg-
from
satisfy
join in an
an adverse
L. Adams not
debt of B.
first sold
appellate
decree
ment.
held
decree is reversed”.
erroneous, and then said:
n
Salford,
Fla.
37 So.
In Parken
“* * *
decree
What .shall
do with the.
we
below
567, 569,
had
a decree
been entered
admis-
infant
? The
defendants
proof
one
the defend-
insufficient
on
torneys
and Ira
answer,
sions in the answer of Priscilla C.
on the bill and
but the
way
If bind-
present
bind the infants.
ad
Harris in no
litem was not
at the
Harris, they effect her life es-
ing
appellate
Mrs.
trial. The
court said:
spe-
only, giving plaintiffs
right to
tate
“According
decree,
when
case
*6
for
of the contract
coal.
cific execution
trial,
by
was called for
it was heard
an
plaintiff
to
This leaves the
without evidence
agreement of counsel.
agree
Minors cannot
bill,
clearly not
to
support
entitled
its
by any
in court
be
agreement
bound
the infant defendants.
a decree
by
guardian
made in their behalf
the
ad
question
now
do
find
We
not
guardian
litem. The
ad litem cannot waive
directly
been
decid-
decision has heretofore
only
anything. A decree can
be
on.
entered
court,
by
jurisdictions
in other
it
ed
this
but
* * *
adequate proof.
has,
that it is the
and held that the rule
“The trial
any
court did not hear
evi
duty
protect
the interests
of the courts
dence,
by
but
its order
it
said that
appellate
applies
court
litigants
infant
to an
heard on the bill and answer.
how
Just
as
brought as well
into which the case is
dispose
by
the court can
of an issue made
appeal
court,
that on
and hence
the trial
answer,
bill and
every
in which
al
almost
every
given
the benefit
an infant will
* * *
legation of the bill
denied
is
we
could
availed
of which he
have
defense
However,
comprehend.
fail to
we would
might
himself,
have been inter-
or which
question
not be inclined
raise
as to'
court, and that
posed
in the trial
for him
matter,
disposing
this method of
of the
error, as to a minor
shows
where
record
parties
represented by
since the adult
were
reversed,
defendant,
judgment will be
objection
raised
counsel and
no
in the
part,
it be-
though
is no
there
chancellor,
below,
court,
duty
guard-
as the
nor in this
of the
court
but a dif
ing the
rights.
infants,
protect
(Cit-
their
ian of
presented
is
ferent situation
where the-
principle
same
has
ing cases.) This
rights
Waugh
of minors are involved.
v.
where the
of in-
applied
Robbins,
181.”
33 Ill.
in commissioners’
have been involved
fants
Although
guardian
ad
not
litem did
excepted
cases.)”
(Citing
reports, not
to.
appearance
even enter
appellate
in the
Co.,
Chicago Title & Trust
v.
Leonard
court,
judgment
reversed
397,
4!)> therefore, point must, be ruled One-fourth of the costs will be taxed 216. This against plaintiff, O. T. Haden. T. Haden against the O. and balance against the defendants. question co-tenancy on the holding Our unnecessary assign- to consider the makes it is so It ordered. laches.
ment on BRICE, SADLER; J., LUJAN, C. stated, the interests of above O. T. As COMPTON, JJ., concur. separable, minor son are so and his Haden the interests may of the minor we Rehearing On Motion in our we the record and view
on what find law; applicable but we will treat McGHEE, Justice. any adult as would appeal of the we The In ordinary rehearing defendants call their motion for case. our at- say effect, opinion holds, our filing fact that defendants in tention the owner of an instigated by Gordon Cone undivided interest in real case was ty may champertous pay claimed not separately into a render and entered that he Haden, whereby elder due interest. It not our with the taxes on his contract opinion case finance the intention the should be so under was to receive Cone recovery. stood, The elder rather but when is as one-fourth tract entirety as sessed in the name of one case, but his event Haden has lost owners, more tenant common prej- not be could the minor proportionate may pay share and' by claim Any by udiced such a contract. discharge thus lien of his- the state on doubt, will, against be Cone the minor undivided The interest. lien of the state whom it will judge scrutinized entire tract continues until all taxes- presented. have to be paid. Village Baca v. assessed are Be judgments against O. T. Haden will 803; len, 30 N.M. 240 P. Toothman v. affirmed, Courtney, 915; minor, be W.Va. but reversed S.E. State Co., Coal v. Central Pocahontas 83 W.Va. the cases will be remanded to Dis- cases, 230, 98 S.E. 219. There are trict Court with instructions set aside done, may holding this but are con judgments its as to the minor on his com- providing trolled statutes therefor. plaint cross-complaint and the de- principal quieted ground fendants title relied on whose him, judgments enter reversal accordance claim expressed. with the herein of undivided views an assessment in land *9 so the laws descent or of distribution and void, and therefore Mexico
in New disposition. testamentary virtue of thereon. The based be title could tax valid with the contention this met defendants urge upon The their defendants also us of the entire “The rendition following: they opportunity claim given if by Thel- made East Half of Section can show that interests the Haden were 242 of page at Mangham and-appears ma just actually the ones sold. clear It transcript.” under assess- how this can done be ment, tax sale certificate and. deed with statement supported the record descriptions unambiguous and the law their accepted reply brief plaintiffs in their case; but we are will- declared in in- as parties were when the it as Later true. day ing defendants to have their for the ques- briefs on additional vited file point. court on one-fourth an undivided of whether tion only or sold tract interest in the entire attention The defendants call our stated interest, the defendants the Haden people the fact that there are several Mang- by Thelma that after the rendition by our interests are affected deci whose rendered also had Mrs. Canada ham, parties suit, sion who are not separate assessment. interest one-fourth of all interests for a determination the case family -who Canada As the members with be remanded directions to should were interest one-fourth owned such parties. agree all such We with bring in- assess- their not consider parties, we did opinion the former should defendants now parties before ment. far as So may parties so new be added be modified concerned, interests their day in court have their on all is statements, own were, according their Nor Hugh Gale No. sues. K. Post (cid:127) Had the assessment. by the one covered ris, 58, 201 P.2d 53 N.M. par- Canada interests owners mod- .opinion filed will be heretofore subsequent rendition ties, effect of following extent: ified to the would have their one-fourth proof may for determination offer their matter The defendants been a. may may not the Haden in- They support or be able their claim that court. sold, provisions actually and if within terests were the ones bring themselves may Compilation, admitted, al- offer their which it be Sec. 76-207, property any, opposition thereto. The against proof, if to assess an assessor lows may on the tax rolls person as made named until it is re- of a assessments estate necessary parties may proved. All possession of some one also be under duced to .the cross-defendants, defendants, be made pleadings as
with such amendments of
may proper. be deemed plaintiffs and the
The trial between the will, course, conduct-
new defendants *10 them; 'but as to
ed case between as new now in and the defendants case, as will be limited the new trial issues, any, if provided and new
above such pleadings. may be raised amended in the motion urged matters
The other to be without rehearing are deemed
merit. opin- the modification
In view of stated, motion for rehear-
ion as above will be denied.
ing
It is so ordered. J., SADLER
LUJAN, C.
COMPTON, JJ., concur.
COORS, participating. J., P.2d 464 HENDRICKS.
HENDRICKS
No. 5316. New Court Mexico.
Dec.