*1 665 complaint considered as and those and cannot be findings these objections to Ares, required by adding allegations. to the Beals v. requested well taken are 459, N.M. 185 Nor can it be Rule 15. 25 P. 780. Supreme Court 6 section nature of the search considered determine the to will we Under circumstances Rasco, Camp cause of action. Durham v. 30 information. record for this 16, 599, 34 838. 54 N.M. 227 P. A.L.R. N.M. Race Ass’n. Hollywood bell v. Coulter, 260, 558; Lillibridge v. 221 P.2d they but are questions argued Other 315; County 105, Lea 192 P.2d 52 N.M. merit and will not be considered without 250, Elkan, N.M. 52 Fair Association v. discussed. 228; Bank of Federal Land 197 P.2d It follows from what has said that 87, Beck, 121 P.2d v. 46 N.M.
Wichita should affirmed. error must able party alleging A 147. is so It ordered. Trustees point it. Board of clearly to Garcia, v. Town of Torreon Land Grant SADLER, McGHEE, J., and C. COMP- v. Mc Mitchell 32 N.M. 252 P. SEYMOUR, JJ., concur. TON and Clutcheon, 1086. 260 P. 33 N.M. proposition As recover implied quantum contract of Campbell Hollywood we
meruit held v. Ass’n, supra, that cannot sue one on
Race
quantum
express
contract and recover
prayer, for a asks alternative Rehearing Oct. Denied 1954. meruit, quantum upon a but prayer pleading code relief under part no the statement of the
forms
n cause Burnham-Hanna-Munger of action. Hill,
Dry Goods Co. by both has been held
P. 62. And it supreme court and the territorial
(cid:127)court
n prayer for relief is not *2 Nelson, R. Truth Consequences, or
Jess Chavez, Jr., Fe, David Santa Hannett & Hannett, Lindamood, specific performance Hannett, W. S. decree of as to G. W. royalty appellant. interest. Albuquerque, for n Roswell, Kiker, Brice, Perhaps H. A. Santa pre- R. because this counterclaim C. Fe, controversy sented a appellees. entirely 'unrelated controversy by appellant’s initiated orig- Forbis, per
Thomas B. se. complaint, inal appellant and his then attor- SEYMOUR, ney, Forbis, Justice. entered a new into supplemental .agreement fee for the de- attorney’s concerns fees and This case against fense agree- counterclaim. The many large num- facts of which involves omitted, contingent ment was for fee of an undi- they may will be ber since y^th vided interest whatever was jurisdictional to the issue have no relevance success- fully appellant by saved to disposition appeal which defense counterclaim. made. n The suit was tried concluded represented by
Appellant, attorney prejudice’ with dismissal of the counter- Forbis, appellee, suit in filed Sierra trial, claim. The court so found and further County Gray, seeking money against *3 appellee that the Forbis became en- found judgment and other relief in connection with by titled to his this defeat of coun- fee the contract unrelated the a construction findings supported by terclaim. These presented Gray’s problem here. answer to unnecessary substantial evidence and make complaint, insofar as material to the labyrinth a detail of the of facts which case, asserting was a counterclaim instant culminated in the dismissal of the counter- between joint agreement venture himself claim. acquisition appellant, involving and the The issues now before us arise from the leases, providing gas
of oil and for an intervention of the Forbis in this thereof, ownership equal (cid:127)equal an divi- and case, subsequent to the dismissal of the therefrom; profits this counter- sion of counterclaim, asserting his claim for attor- appellant charges with failure to ac- claim client, ap- ney’s against his former fees proceeds Gray for his share of the count to pellant. gas covering derived from an oil and 2,444.40 by
approximately permitted intervention petition acres located in The County, Mexico, describing agreement, alleges New trial a fee San Juan performance same, petitioner’s legal to transfer to him successful and failure services, appellee was the royalty that record owner overriding allegedly of a 2% % appellant acreage; and lease described gas oil retained of the counterclaim, he, appellee, was entitled money judgment seeks both counterclaim to, hereby impressed, interest in and or there is to an undivided 121/2% Ysth estate, upon en- that he was lien against and entire leasehold all of the above that he is the determining property described titled to an order to secure his attor- alternative, ney’s or, that the of an in the fee one-eighth owner thereof undivided (%) his services in the de- interest in reasonable value and to de- said above $15,- was property.” counterclaim scribed (Parentheses ours.) fense of the second which he was payment to secure Any understanding disposition of the entire leasehold a lien entitled to requires this case noting of certain factors: prayer Intervenor’s-appellee’s con- estate. propriety of the original intervention seeking pleadings an with his forms properly was disposed raised. It owner of an determining him to be the order the trial court as follows: “ particular undivided * * * %th It holding is the of the estate, or County leasehold San Juan Court that Mr. properly Forbis is be- alternative, given judg- that he be fore the Court for the assertion of his against $15,000 have a lien ment for and attorney’s lien, and to invoke the aid of pay- secure estate to leasehold protect the Court to him for his fees (cid:127) ment thereof. agreed upon accrued, earned,— of the trial court on Final whether or not the pur- method he has of the intervention reads in sued, the- matter intervention, anis so-called, part as follows: Statute, under the Sec. is or- * “* * * * * properly find- applied, Court proper or the intervenor, pursued. concluding that the method to be No ruling as to- Forbis, is applicability entitled to
Thomas B. of that section re- attorney’s quired here, or fees which the as to secure his to whether an inter- vention, such, may found to as brought Court has undivided in. one-eighth (%) applicant, sufficient that the property de- the At- Forbis, torney by apt in defendant’s second scribed count- has measures- ** - applied to aid, the Court erclaim to-wit: relief and protection fees, description exact “(here is oil that has *4 simply covering 2444.40 called to- gas lease acres in the attention of County, by the Court the pursued, San New method Mexico) Juan —that [*] [*] [*] sjs is the so-called Intervention applied “Wherefore, ordered, for.” it adjudged by the court short,
and decreed that in- the In trial the court was apparently tervenor, Forbis, B. Thomas is entitled acting equitable within an area of power to-
66!) brought county in court. property of his where the protect a member the fees of Appellee, located. original having proven to his that own It is to be noted further and accounting a satisfaction that such an action is an transi- sought counterclaim tory, royalty overriding states that this totally conclusion “is of transfer of 2% % case, immaterial in the result as it an action lease. As this to specific gas oil and on a specific counterclaim, performance enforce inter- of a contract of dismissal of convey property, real interest quarter such actions fee a one asserts venor as by general by by such law and statute are transi- client his in whatever was saved tory.” In support proposition asserts of of explanation, he this victory. Without law, there in is cited interest N.M.S.A. 1941. undivided § this to %th 2,444- covering particular gas oil and There presented this are other theories on County, asking that he in acres San 40 Juan question, and all these lead to one theories The trial thereof. the owner be declared that, necessary conclusion, namely, before adopted substantial apparently this jurisdic- a decision can be rendered on ap- theory; would this appellee’s change of question, tional this Court must decide assumption the court’s pear true from to be itself what action sort of is involved. saved counterclaim that the dismissal oil interest in this appellee an undivided determination, % In making this if we quot- in judgment, gas lease. petition look at the initial in pleading, above, result. ed intervention, clearly there asserted there as a for re- ground by court and
In the trial undivided interest in a intervenor Vsth. Court, appellant has denied particular gas In New versal this Mexi oil lease. the trial court under the jurisdiction co, gas the interest covered an oil and 19-501, N.M.S.A. property. subdivision of Fourth lease is Vanzandt Heil § real 1941, 97, providing man, as follows: 1950, N.M. 214 P.2d 22 any interest in or
“When lands
Vosburg,
A.L.R.2d
Sims
any
in
object
434; Staplin
suit
Vesely,
are the
lands
91 P.2d
part,
Intervenor,
such
shall be
or
suit
whole
P.2d 7.
county
land
where the
brought
petition,
states that
body
he is
thereof is situate.”
any portion
determining
to an order
he is
entitled
escape
We cannot
owner thereof.
parties include an ex-
The briefs
portion
petition
conclusion
of the authorities
of all
review
tensive
wording
within the
falls
intervention
statute. Both sides
upon this venue
bearing
any
“When lands or
venue
a suit
strenuously
to whether
to of
argue
any
object
suit
lands are
must
property
real
impress a lien
*5
”
* *
any
appel-
duty
obligation
when
of
apparent
more
even
*. This is
interest
lant.
petition
an undivided
asserts
pro-
pursuant to the
in the leasehold estate
is
judgment
We must
this
as it
take
N.M.S.A.1941,
visions of §
accomplished.
written and determine what it
n sectionin the
portion
our
of
title
quieting
The
judgment
substance of the trial court’s
n compiled
for intervention
providing
laws
necessarily
adjudication
an
that
fees.
protect his
by plaintiff’s attorney to
is the
of an
interest
owner
undivided %th
quoted
comments
We have heretofore
gas
question.
in
This
the oil and
in
n applicability of
to the
the trial
is what the
and this
asserted
intervenor
agreement
general
in
this
and are
gave
what the trial court
sub-
The
him.
any
statute has
such
his doubt that
with
judgment
changed
stance of this
cannot be
However,
case.
instant
relevance
by calling a
interest in this real estate
%th
inter-
clearly points up the fact that an
this
a debt which is
a lien on the
secured
petition in
object of
in land was
est
inter-
incongruity
whole
of that
lease.
intervention;
judgment
and the
pretation
contemplates
is evident when one
n court,
though not rendered under this
even
proceeding
foreclose such a lien.
comprehended
act,
result
has reached a
many
There
theories of
terms.
within its
argued
case which are
which
would
in intervention con-
petition
same
This
plead
have
under a
merit
different set of
assertion
an alternative
of services
tains
Appellee
ings.
asserts this was
suit for
requests
$15,000,
judgment
fairly valued at
specific performance.
might have
There
right
alleges
to a lien
therefor
suit,
peti
a reading
but
of the
such
gas
pay-
lease to
the oil and
secure
against
appropriate allegations.
tion discloses no
judgment. This
such a
alternative
ment of
hand,
might
there
have been a
On the other
question
difficult
plea raises the more
ar-
performance
lien to
mortgage or
secure the
parties
as to
gued
whether a suit to
is,
act,
that
trans
the execution of a
impress a
on real estate
lien
comes with-
fer;
petition
in
again,
but
neither the
quoted,
purview of the
section of
judgment
tervention nor the
of the court
language
may
appropri
statute.
venue
contained
which
ately
possible theory
to this
addressed
requires
question
latter
This
no answer
appellee’s claim.
because it is our conclusion
here
that the
court,
spite
of the trial
its
peti
It
our conclusion that the
word, “lien,”
did
use
not in
ad-
fact
tion in intervention
first
its
alternative
judicate a
securing
performance
allegations
constituted a suit in which an
enter an order dismiss-
is our
trial court
It
object.
in lands was
petition.
ing intervenor’s
in sub-
conclusion
further
allega-
second alternative
ignored the
stance
so
ordered.
$15,000
seeking
attor-
petition
tion of
*6
lien,
concluded
by
and
secured
a
ney’s fees
SADLER, J.,
McGHEE,
J.,
con-
C.
and
ownership
adjudication of
by an
case
cur.
in real
appellee of an undivided
LUJAN,
JJ.,
and
dissent.
conclusions,
COMPTON
result of these
property. As a
pur-
falls within
that this suit
hold
we
COMPTON,
(dissenting).
19-501, Fourth, supra, the venue
Justice
of
view
§
County,
court in Sierra
and the trial
myself
find
in disagreement
I
with the
located, was with-
the lands are not
where
majority in
case.
this
The holding that ven
Stolz, 1934,
jurisdiction. Atler v.
38
out
in which
in all cases
real property may
ue
243;
529,
Land Co.
37 P.2d
v.
N.M.
Jemez
in the county
involved is
where the
is
land
Garcia, 1910,
316,
hamed, 164 Miss. disposed' question Co., the court Mortgage States & United v. Colonial 433, language Minn. 205 L.R.A.,N.S., following 482, 263, [164 34 So. 17 82 Miss. : 138; Clarksburg & Coke N.W. Coal Morrison 285] contracts, including “Actions on 102; 331, Baker v. Co., 43 S.E. 52 W.Va. relating estate, real have al- those Bank, Mo.App. 279 S.W. 220 Farmers’ ways recognized transitory. Court, Nyquist District rel. State ex 164 Minn. 205 N.W. 284. [*] »H= Holmes, In Neet v. Cal.2d Stolz, supra the action was In Atler v. 557, 560, the action was for P.2d an ac- conveyance compel the debter to trust, counting, for a declaration of and for involved, that the land question other relief. The was one of lien, and the land sold a first declared venue. The court said: action held While the its satisfaction. “In Turlock Theatre Co. Laws local, strongly suggested that it was
to be P.2d Cal.2d 120A.L.R. [12 right plaintiff nevertheless had a to es- 786], supra, pointed it was out that an lien, saying: her the court tablish transitory action is rather than local appellant “The most that could de- *7 right property any where the to real mand establishment of her lien. was the sought by plaintiffs depends upon the Except purpose letting for the her controversy a the outcome of concern- in, disturbing made for case was no personal obligation of the defend- de- among the several transactions the ants, judgment and the rendered there- fendants.” on would be one to enforce such an ob- Cleland, supra, In Alexander in the ligation. The nature of the action here opinion course of the court the held [13 is, essentially transitory, is the de- 524,86 P. : 427] fendants would be entitled to have it created, “However a lien (and a county residence, tried in the of their mortgage lien) is not an interest if the determination of an estate or in- land, m,erely security in but for the merely terest in land is incidental the to debt, payment of a and a contract to re- equitable for determination a cause mortgage is not lease a within the stat- trust, fraud, relief in or contract. The ute.” local, nature of the action and must Nyquist State ex rel. Court, v. District county In be tried in the where the land is question supra, the situated, whether an action it where turns on the to title cancel to a contract for the property sale of personal real as distinct from the obligation, operates ute, ex every the decree district court other the than * * ‡ proprio vigore the one in county on title. the in which the.land situated jurisdiction, is denied try to
“In present case it obvious In case, same. the instant the agree- principally action turns on ment is that the taken in the personal obligation, from as distinct name of appellant, judgment and the title, any judgment and that for sought and obtained is to not one mining properties owned now change title, this record except so in plaintiffs all, if would follow at far as appellee’s declaring merely as an incident of the in interest the leases and that appel- obligation.” establishing personal lant holds such interest ap- in trust for Looney, Tex.Civ.App., In Lanier ” ** pellee be notice of that fact. persons three entered into S.W.2d The majority opinion is based to the one here. similar involved contract language found in the venue 19- § was one of venue question and the 501, 1941 Comp., making proceed- local the held: court ing “when any lands or interest in lands” ap- “Appellant’s theory the case pf object suit, of the “in whole inor part.” parently to enforce an oral is that suit language Similar is found in our par- first entered into between agreement statute authorizing quiet title, suits to anyone jointly “by interested to become having any ties or claiming land, subsequently land”, in rights mineral Laws ch. and car- § acquired by leases taken in the ried in name forward through same form parties, date, and in which the various of one amendments to § fully Comp. party performed has This other statute has been construed on occasions, agreement, is a several suit before and after state- land, that, recovery hood, under which we held a lien was and is not mandatory provisions of the stat- “interest” land. There posed is then question, quoted, no district court of did the word ute above “interest” have jurisdiction try meaning the state has such a different in the venue en- statute suit, except quiet- it county acted in 1876from what had in the *8 ing is situated. We title statute enacted in 1884? which the land can- Obvious- contention, ly, majority agree either so holds. The to this hold- cases land, that such a suit one to recover the word “interest” quieting title that, mandatory pro- because of not embrace “liens” are statute does Stan- P, Catron, 884; 14 of of section the venue 8 N.M. vision stat- Holt- ton 173; 377, 162 Freudenthal, 22 N.M. P. hoff v. Development v.Co. &
Security Investment
Capital Bank, 164 P. City 22 N.M. Ortiz, 575, 195 P.
Pankey
Since title to lands is appellee seeks to time
will not be until such lien, properly the action was
enforce his County. majority
brought in Sierra conclusion, I
having reached a different
dissent.
LUJAN, J., concurs. P.2d 625 Plaintiff-Appellee, SPIEKER,
H. F. COMPANY, Defendant- OIL
SKELLY
Appellant.
No. 5786.
Supreme of New Mexico. Court
Sept. 1954.
Rehearing 13, 1954. Oct. Denied Hobbs, Girand, R. Hor- William
Neal & Old., appellant. Tulsa, key, Hobbs, Heck, W. Robert William J. appellee. Ward, Lovington, for