*1 Co., 284 Sears, & Roebuck 810, v. Hillis Shrigley 558, N.E.
Mass.
Boston Symphony Orchestra, Inc. [287] may not 420. One [300], 191 N.E.
Mass. alike, as- nor stairways to be
expect all exactly stairway every will
sumе fit stride even own accustomed ours.) person.” (Emphasis average reach of the conclusion view
In be- argued point under assign- unnecessary to other notice
comes have sus- court should The trial
ments. instructed motion for an appellant’s
tained judg- reasons stated For the
verdict. aside to set with direction is reversed
ment given entered heretofore judgment And appellant. judgment for enter
and to
it is so ordered. BRICE, J., concur.
SADLER, J.,C. par- LUJAN, did not JJ., BICKLEY
ticipate.
LAUGHLIN
No. 4815.
Supreme Mexico. Court New
Nov.
Rehearing 27,1945. Feb. Denied *3 Cruces, for
Whatley Garland, & of Las appellant. ap- Mechem, Cruces,
Edwin of Las pellee.
BRICE, Justice. (ap- brought plaintiff
This action was pellant here) “Declaratory Judg- under the Act”, Comp. seq., to ment 1941 25-601 et § rights determine -the interests parties upon such to certain real estate and party determination “to set over .to parties court shall determine whom.the same,” be or the the owner owners 23 During $3,000 $5,000, respectively. there- respective their shares interests years half farm appellant 1924 in. claims title 1923 The of an virtue operated interest in a acre there- farm was jointly by parties;, after, appellee; year, alleged exception with one oral contract land, upon half was parties. interest tract of in a leased third acre by com- theory paid for that it was proceeds crops produced munity funds, being husband parties operation years during of the farm and wife. mentioned bank in deposited ain appel- whether the first parties name of appellant by the used lant the owner an interest joint these as a checking Out account. acre farm. $10,040.50 parties funds the settle- paid appellee’s ment there- interest debts and appellant, theory alleged by It is and his on, mortgage due indebtednesses two evidence, supported that after was his $5,000 principal $3,000 sums marriage parties entered an oral into respectively, and interest thereon amount- agreement in determined which was $2,040.58. ing to (appellee’s) land not worth defendant’s was it, against mortgage indebtedness Upon the'$5,000 payment of indebted- accept mortgagees refused to fact parties ness the caused the and mort- notes indebtedness; in settlement of the land gage assigned by mortgagee ap- be parties agreed they would under- pellant. apparent еxplanation In pay off the and im- take to indebtedness appellee executed, transaction acknowl- it, prove by farming land when recorded, edged and had en- a document paid, each encumbrances should titled “Declaration of Lien” in which parties entitled to in- would be one-half $1,000 execution *4 aggregate specified amount sums full parties were married in and notes, to-wit, promissory sum in said pendency during the divorced of this suit $5000; consideration which said of in of appellee, prior court. The the district to in of has Bank Las National Cruces the First operator marriage, was owner and of promissory said notes on by endorsement farm its acre situated in Ana Dona assigned, law, transferred of form County, New Mexico. in due par- At time the singular five all and over said and made by ties were married it was encumbered husband, my unto said promissory notes securing mortgages two notes sum in the 2á of said become lien thereon in the amount half thereof has in сonsideration
who n owner, to the value.” legal entitled now the and mortgage possession and the same We examined and have record payment thereof.” given to secure deed are that evi satisfied there substantial appel- therein that further stated support findings dence in these premises, and lee, in consideration trial Regarding assignments court. payment of the husband to secure (admitted mortgages and have notes question, that certified promissory notes by mortgagees been executed lien in and of a “possessed appellant was appellee) consent of “Declara and the land, subject to a 97 acres upon” the by appellee tion of Lien” about executed mortgage secured indebtedness $3000 years twenty ago, only need we state balance of person, being the another due trial evi court found substantial par- which the appellee’s indebtedness they dence that con without were made funds men- paid out of -the likewise ties sideration never intended were tioned. binding appellee, alleged agreement Regarding this any finding. bound But in event follows: found court appellant appellee’s claims lien 97 acre tract of land as virtue between agreement was made “That no signments mortgages execu of- the and the they shortly after were mar- parties tion of the Lien” which “Declaration of part year ried, or, to-wit, in first described; that these has asserts by plaintiff, effect as claimed assignments the declaration in operate they jointly farm and “pursuance” presum made of, were thereby improve it said real estate of, ably to enforcement the al secure the money products realize thereof from the leged agreement oral which this action mortgages, enough pay off said notes enforce, and court instituted which the each payment and that thereof that found was never made. party should an undivided оne-half own estate; and that interest in and to said real findings every ten- These settle issue agreement no such made. was ever complaint. right dered No asserted, lien is nor is claim made agreement between “That no was made appellant therein is entitled to re-im- parties mortgages after said
25 the gift were a appel- that such funds improving sumed expended in munity funds appellee. farm. lee’s the trial first is whether The alleged agree- the oral follows It holding de- funds court erred in and of the notes assignments
ment, the parties’ farming operations rived from the Lien,” “Declaration and the mortgages appellee’s farm, appellee’s which with consideration; eliminated improve- paid mortgage debts were title claim of appellant’s goes with them made, ments were all funds of farm. 97 acre to an interest appellee. opinion It trial was appellee’s, court that such funds were right appellant’s question of The N.M.Sts.Ann.1941, 65-304 virtue of Sec. such appellee’s farm for against to a lien which is as follows: “All injected expenditures into was marriage wife owned her before appellant against parties, decided acquired by gift, bequest, afterwards pro argued presented below. It is here descent, rents, or issues devise Un parties. and con in briefs of the prop- thereof is her cogniz will take der circumstances erty. may The wife the consent without of action cause ance of it as we convey of her husband her Estate, 40 N.M. duly pleaded. In re Field’s erty.” 423, 60 P.2d plaintiff the contention of the appellant concluded that court labor, skill, industry, ability of appellee’s not entitled a lien on farm
was
parties
community,
belonged
and that
any
payment
him of
to secure
sum
portion
derived from
income
money
to be due him
claimed
on account of
asserted,
(which,
due thereto
it
farm
any expenditure of
funds
larger
belonged
part),
com-
payment
appellee’s mortgage
debts and
munity.
fоllowing
improving
farm,
for
for
adopted in
law
common
(a)
Because the funds
reasons:
used
Mexico
which
New
the effect of
payments
expenditures
such
Ares,
stated in
N.M.
Beals
appellee; (b)
ap-
funds of
if the
780, 788,
Legis
follows:
as
“When
pellant had
fact
interest
such
adopted
lature in
common law
funds,
expenditures
the small
did not in-
decision,
practice
whole
the rule of
crease
value of
body
law as limited in the case
of that
causes;”
increase was
result
“natural
Browning, supra
Browning
v. Estate
[3
(c)
used,
if
such funds were
so
677],
into
9 P.
came
N.M.(Gild.)
providing
absence of a
contract
for re-
jurisdiction. Where
found
it
a statute
imbursing
(and
no such
yielded
provisions,
its
counter to
pre-
proved),
conclusively
contract was
acquired
mar-
“All other
after
statute,
far
gave way only
so
but it
both,
wife,
riage
husband
either
principles.
conflicted with its
statute
*6
community property;
but whenever
operated
possible
In so far as was
it
conveyed
any property
a married
conjunction
harmony
the stat-
and
with
writing
instrument
the
woman
it, it
with
utes.
the statute conflicted
If
presumption
thereby
vested
title is
repeal
of
stat-
bided its
and
time
”
* * *
separate property.
in her
as
other
operative;
again
ute became
Comp.
1941
65-401.
Sec.
adoption,
words,
law, upon its
the common
nook,
crevice,
every
and
came
and filled
Spanish
It is the rule
law
of
all
it had
jurisprudence where
corner in our
acquests
gains
spouses
of the
from
by statutory
stayed
supplanted
not been
separate,
community, prop-
their
well
as
as
enactment,
applicable to
it was
in so far as
belongs
erty,
community,
to the
and this
our
and circumstances.”
conditions
Texas, Idaho,
law of
is the
Louisiana and
Territory
Rico.
of
But
Puerto
that,
But it
held in
was further
California,
Mexico, Arizona,
New
states of
cases,
of
other
construction
express
stat-
Washington
Nevada and
foreign
statutory law,
coun
adopted from
provided
rents,
utes
issues
tries,
source for
look to thе
should
profits
separate property
of
are
interpretation.
v.
Harrison
definitions
separate property.
owner’s
356,
372, 155
Harrison,
L.R.A.
21
P.
N.M.
459,
1916E, 854;
Ares, 25 N.M.
Beals v.
noncommunity
general
is a
rule in
569,
780;
Chavez, 42 N.M.
185 P.
State v.
property
rents,
issues and
states that
27
property
use
rents,
are
combination of the
issues
itself;
indus
spouse
of a
skill
attributable alone
try
factor
or both
members
one
practically
cases
all
equitably divided be
talent
management,
labor
Katson, 43 N.M.
tween the two.
v.
belong
Katson
value,
of these
greater
the fruits
214,
524;
54
Torrey,
89 P.2d
Steward
Spanish law.
v.
community under the
369,
990;
Ariz.
95
Wit
v.
P.2d
Witaschek
Spanish
interpretation
Looking
to the’
600;
aschek,
Cal.App.2d 277,
56
132 P.2d
law
in Mexico at
time
existed
Revenue,
Shea Commissioner
v.
of Internal
Conquest, which was the source
Cir.,
937;
Camp,
9
Camp
81
Van
F.2d
Van
v.
system,
community property
it has
885;
tions of which land is transformed com- knowledge into that such general matter value, property. or acquires, cash mon If сon- either he as is rental a market has by respondents, right tenant’s tended crops, whatever a division industry greater against super- value his wife virtue his labor and crops than production right, in the vision is not a in the factors there lien, supervised, thing combination used in nature land bestowed, which the labor is with. right compensation, merely a his Ransom, George v. early, case of In only proceed process creditors could Supreme 490, the 322, Am.Dec. 15 Cal. garnishment. In ex- of an the absence legislative that a held that state Court effect, press agreement to that there rents, issues and providing that act implied obligation of the wife property of the profits of the compensate services, the husband community, was spouses belonged to only and in either case there counter ran that it unconstitutional imperfect obligation which neither the hus- constitution the state XI Sec. Art. band nor his creditors could enforce.” both real provided “All which owned, claimed wife, said, George The California court personal, acquired marriage, Ransom, supra: Legislature “We think her before (cid:127) descent, shall devise, or power by gift, say afterward Constitutional has not the fruits shall property.” wife be her given wife’s from her and be taken the husband from the dispute dividends * * * creditors. term or his This corporate stock. *8 'separate property’ meaning a fixed has in al., 24 et Chard and Lewis In v.'Johns * * * per- law. common It is not question was 49,' 98, 85 Am.Dec. Cal. one, property can be in that in full ceived sepa- upon the wife’s grown crops whether ownership, right separate in and labor, super- through property real rate control, enjoy all its another husband management of be- vision ours). (Emphasis benefits.” The in wife. court said longed to the cannot, by his the rule common the husband It was law that “That part: rents, labor, acquire profits supervision, management, prop- issues
29 separate profit, estate, turn it to belonged to so as to erty and wife of both husband manage sepa- Spanish- the husband has his husband, whereas, under the business, proceeds estate. The rents, profits rate law, issues and Mexican therefore, belonged her.” be- property separate both longed community. to the especial- appellee case on which the The Pepper, Cal. ly re relies In Estate law the The fact common that under the 619, 62, 64, L.R.A.,N.S., 1092. 112 P. be- property have “fruits” of would Pepper separate property owned as his Spanish- longed husband, a acres of land on which conducted he in laws Mexican nursery engaged business. in He was time, under force in California at his time other business devoted entire separate which the wife could own holding that energy conduct. In to its erty belonged to the the “fruits” of which rents, profits issues and of this business community, been con- seemed not have Pepper, property of were the Prin- sidered. This criticised acquired “Earnings, said: court ciples by de Property, Community industry exercise of thе or skill of either Funiak, 71. § wife, husband or are to be credited to the Supreme hand, community. was held On Court the other Hopkins, land, California, separately 95 products owned Diefendorff 549, Cal. 28 P. spouse, and cultivated either or either opera- both, earnings in her of a married woman become appellant as- boarding
tion The owning of a without the does house one the land. that, husband, Pepper dispute proposition of her estab- sistance which was if funds, had, lished year year, grain, with her own was her after his land to sown sepa- property. begin resulting crops rate a said: have court “To formed with, part argued she owned Pine house But Street estate. lot, that, nursery, prin- where she carried on a business in the case of the exclusively, which was cipal hers and in which venture element the success of the her any part. industry, husband skill, refused to have was the and attention proceeds were, therefore, of such Pepper, business and that land the use seрarate estate, her being profits was, effect, merely incidental to what property. Code, enterprise. Civil We are unable § commercial It is they been, true may argument some see that furnishes sufficient any agricultural extent, ground distinction. In personal of her labor and attention, enterprise, skill of man are must, the labor and degree, but so some grain An orchard or essential to success. rents, issues, sep- and cared for. arate must be spouse, field cultivated estate of either wife product due to the must resultant right manage have the her The same *9 upon case, the conclusion processes operating basis of its the nature applica- the land, intelligent different, from follow- part as will be seen and in the to is, in quotations ing to soil. therefrom: tion of manual labor impossible appor- things, to the nature “But record does show that the de- crop what share determine tion the so as to sources of had no other income cеased what share of it from soil and has come rents, issues, than- product from of man. the exertions mar- him the date owned at and, it is whole, if treated as must be ; riage engaged in busi- that he was owned, it is growth separately of land caring for ness except looking after and separate property owner * * * the properties which he owned. land.” de- “The that record here shows likewise The doctrine of this case is issues, rents, ceased received Principles of criticised de Funiak in his land, from other the different tracts Community Property, He states: § date city property than him at the owned by many courts “The view taken of his as is silent marriage, but the record be that each case must determined to how from profits realized much of the surrounding cir- reference to its facts and sources were to exertions due be must cumstances and that therefrom deceased, much attributable and how determined what amount of income only to the land. So far spousеs personal due efforts of record, able ascertain what is attributable to the coming court con- justified erty Dependent employed. nature clusion farm- did but deceased little involved, of the business and risks ing, but farm- leased the tracts of different what re- reckoned fair must be ing during by him entire land owned capital well as turn on the investment as period and collected of coverture rents what determined would be fair allowance * * * therefor. personal for the services rendered.” Pepper case) (in the “While the court Pepper opinion in the was writ- goes nursery required on to state that the Much regarding in 1910. ten the law industry part skill and and attention on the the effect combination use of Pepper; any agricultural enterprise separate property with the labor and talent requires the labor and skill some one member of a has been success; product insure resultant written the courts California since part processes is in due tо the of nature Butts In et al. v. time. Russell et al. land, operating and in Estate), (In Cal.App. Barnes’ re intelligent application of manual labor Ap- soil; is, P.2d District Court of nature of quoted California peals Pepper things, impossible apportion crop so come con- it has character of such share of what determine *10 1, the Pereira, sidered 156 Cal. from what from in Pereira v. soil and share the 488, he product P. Am.St. L.R.A.,N.S., of man. must exertions The Rep. principle is that there stated whole, and, growth The the if is treated as a it separate the owned, capital separately on it land is the interest of the husband of property partnership, the of the owner of land. it time the as the was at his marriage, husband’s the bar, “In at the disclosed facts the case part question what the little, application any, labor but if subsequent profits the use from the arises farming part the of the deceased to the capital part per- this the and what from sepa- by land owned him a of his activity, ability, sonal capacity the but, estate, contrary, the that such rate husband by is to be court determined the lands him were rented to others.” appearing the the circumstances it was foregoing It from the case, seems latter that whatever from the accrues Appeals the District Court the view of community property, source the the had the that if husband farmed profits remaining sepa- must be classed erty been would have that the rate plaintiffs estate. The in error earnings at- portion of the entitled to that their contention that the in not court erred talent, his notwith- tributable declaring property all the derived Pepper quotation standing from the profits marriage partnership after case. separate property.” to be (In question al. re On it was stated in
In case of Gold et v. Gold case) supra, (referred the Pereira Estate), decided in Gold to in the Gold’s sepa- profits regarding right whether of a husband’s saloon was prоfits rate to share in busi- of a business owned the hus- estate gambling marriage, the ness him marriage operated owned before after band before operation community property. of which was after The continued marriage were 1, 103 “This marriage Cal. 621, 151 491]: stated Cal. [156 court P. [170 California capital undoubtedly separate es- was plaintiffs Gold’s claim that “The 13]: tate. fund remained in business profits The partnership made after share of the separate prop- marriage by him after and was used marriage Gold’s became property The carrying it on. erty partner- reason of the fact some been credited with marriage. have ship prior to formed was capital. profit was not on this amount as been carried on and a business has Where business, very profitable one. losing capital before invested therein has been very clearly therefrom, It is that it is shown profits true after marriage, entire large part of income was principal seрarate prop- necessarily marriage, are not character, energy, personal regarding due erty the husband. rules deny the community; would This of the husband. ability, capacity of the main- produced community any if interest course, com- was, earnings share of itself, upon the ostensible ly property capital he munity without property; but di- not be theory could that such income In business. have carried on could not fol- been rule vided. This seems showing a of circumstances absence Supreme Arizona lowed Court presumed that result, different it 369, 95 P.2d Torrey, 54 Ariz. Steward v. justly due to some all it held that in which was nothing show capital invested. There restaurant, which income from efforts defendant’s that all of due to belonged husband, separate property of the probable contribution alone. notwithstanding community, stat- de- capital should have to the income rents, provide utes of that state termined from circumstances all issues, case, and, profitable, as the business was spouses belong owner. to its interest the usual amount at least to long on a well secured.” investment chiefly was Our law *11 California, and adopted from the State of Lake Supreme -The in Nevada Court of Katson, the supra, in Katson v. we followed 361, 4 (Lake v. Bender), Nev. Lake v. hold- the in decisions of California courts 711, 728, P. in the rule stated community to that ing that the was entitled any other : or state as in follows “And this portion the of the income derived from case, mainly if from come the labor, husband, industry, but and skill the of erty, the joint rather than the efforts of business, he, as owner wife, them, they husband and either or portion pro- entitled to income belong property, al- owner of to. duced it. though labor one or both and skill of may given On have been to the business. We satisfied with conclusion are this contrary, mainly from if come courts, the California but we fol- cannot both, they the efforts skill of be- or one or holding low those in rule courts that this long community. may to the be difficult necessarily аpply property. does not to real given a controlling in case to determine Pepper’s Estate, supra. In re question, owing equality to the two agree following unable We mentioned, elements know of no Pepper is, statement in the case: “It determining other method of whom things, impossible apportion nature of profits belong.” crop so as share to determine what it deny would has
This seem owner come from soil what rule share property any part product of man. of the income the exertions The therefrom, mainly whole, and, if derived must be treated as a if is labor, skill, management growth separately of a member the land owned. wife, of or of the owner deemed to be separate property is nevertheless is the acquired by a spouses. rule land,” labor both which has no doubt George Upon theory the wife of mechanic property in California since legally Ransom, is supra. deemed to contribute her share of lаbor, skill, industry earning community its only at a assets of The wages, community which are therefore industry skill, inception are the property. lawyer a The wife of a or of spouses. The talents of physician regarded legally jointly as aid- never own and could owns no ing professional in earning his increase. court, if theory any, under the clergyman, professor, The wife of a or separate- farming the business carried ison public officer, legally regarded as earn- spouses. ly both the lands of one owned or joint portion ing salary. a of his The wife marriage If at a husband the time of a merchant or legally re- farmer owned, say, farm that re- a thousand acre garded assisting as in his business time, quired industry and talent all his contributing profits. to increase its This operate, never own theory applied exception, without wheth- property. husband worth of dollar’s er as a matter of fact the assist wife does from its could accumulate carrying on the husband’s business dispose others will usufruсts and actually increasing thus proceeds, its or accumulations, original lands all whether her solely attention is confined to remedy. without wife would be household, domestic affairs of the farm, might labor bear chil- She even when her solely attention is directed spend practical life serfdom dren and to spending money which husband hope accumulating theory makes. This lost never own, claim legally call her an she could sight of. The code makes nowhere interest therein. community property depend upon expressed ap- views here fact that the joint spouses labor of the two authority proval an Profes- of no less than produced it; achially joint may their labor Pomeroy, article stated writ- sor be theoretical as well as actual. published 4 West him and Coast ten jjí sjs *12 quote Reporter (1894), from which believe, however, “I cannot as follows: phrase, ‘rents, issues, profits’ and as thus code, any used intended include decisions which discussed “All the to agree products, by community property in of the increase and a nature of made business, theory; carrying in a which fundamental all husband on in stating this constantly buying falling selling not within definition and ex- property, he using property, acquired changing, and is his own labor and after separate producing the his in increase from skill labor either of husband marriage at statement, husband capital. and clearness original his separate property, as $10,- marriage be his hardly separate ever had a estate there could Otherwise capital which he his used as the husband property, where Carrying business. this if a business with marriage, his separate at estate a had capital, leaving he a con- dies total be so should provision of code $60,000, issues, has been “rents, there no other phrase, strued. The erty one; or source of the mar- during undoubtedly broad a profits,’ is riage. $10,000 separate original As the only be ascertained meaning its true sum, estate is general included in this total parts other a reference to (cid:127) separate continues to be the husband’s code, es- system, established estate, it limitations, should course Is be deducted. reference to pecially $50,000 separate property, concerning the residue all or provisions, imposed * * * community property? my opinion it all community propert/. In some notes, separate labor as therefore, without code to rents, arising from lands arise from ernment interest estate, arate duction. similar do rectly “The confined to dividends, business, expended [*] which are mortgages, and the result forms the husband’s arising from monies loaned ‘rents, remain estate, bonds, estate, Familiar funds without agency means for their from the husband’s [*] those aas issues, trade, which are which income and belonging other such' invested in producing capital, the husband’s illustrations proceeds which [*] other active use have been property, belonging profession, intended . like profits’ [*] income, them. profits, like, stocks, gov- carrying securities; labor, di- and all leased; [*] which which direct arise, pro- and, sep- his munity property.” which balance, portions which belong to each kind is sub- to the labor of both the that no able and stantially as sonable sent entire out so says: resent clusion. equal estate Cal. Law suggest Mr. all injustice therefore, the income of neither period Evans, belongs ($10,000) if the' “The far. average satisfactory being due to the husband’s convenient Regarding the portion practical Review, portion follows: diversity It does not seem difficult in an some rate kind, contemplation invested at reaches the same belonging marriage, rule article way rule in results A spouses, interest sum out in such has been worked original separate Pepper only published entire increase determine the cases would which would to the com- estate; fair, during fair, suggests case well as repre- equit- situa- con- law, rea- rep- he Pepper presents. Thе following possess rule seems to tions as “The all properly rents,- Suppose, attributable is- qualities. simplicity amount these *13 sues, or profits profits, often and mesne encountered Mathe- the courts. of the matical perhaps expected exactness is re- the rental value not or reasonable quired, wholly justice premises. might be substantial ac- While this can be complished by and accurate, approximately so, and of reason it is exercise judgment in from a dis- all such that could recovered cases. all be be be approximation like should seisor. A products is our view that the time his husband devotes made where the necessarily soil need not treated “be improvement to cultivation community whole.” The is in a ten- effect may be property. Two wife’s courses land, ant of the irrigated owner of the one, open; to determine reasonable farming land in this state has market industry, the other labor and value of his value, rental portion and that value is the reasonable rental value to subtract the land; of the income attributable to Which- produce. actual income produced efforts, remainder was adopted, were result should ever course skill, management community. of the approximate How interest. If value, is market there no rental then expenses family ap- be other should equitable may division made be some depend portioned would on the facts rule, other suggested by such as particular case. In cases where there each Supreme Court v. California in Pereira even net small no Pereira, supra. The does not dif- statute aggregate, period over a losses in the personal between prop- ferentiate real years, presumption that should there erty, and we should not do so. We feel industry as losses on were side rule, bound but not to withholding compared capital result but the application its real as in depend faсts, value on the actual as to the Pepper case. productiveness of the (a) appellee We conclude erty expended. .The as well labor as of the the owner land was its entitled to being manager husband com- either in cash or pro rental value munity highest property should exercise it; crops (b) sold from ceeds of good community interests. faith toward the entitled- balance of fiduciary. puts He is a sort Louisiana produced from income lands proof him, the burden of on the cases labor, skill, management par kind, to show that a ties. separate property arises from and how large part is.” mortgage paid, As notes were great difficulty appellee’s improvements will be
No encountered in farm earnings proceeds made, apportioning crops with the between the parties, the two estates. farm grown appellee’s owners of Each will facts; depend upon its own the trial court erred follоws that in hold- a situation 759; Guye Guye, 63 improve- Wash. ing" mortgage notes *14 L.R.A.,N.S., 37 appellee’s with wholly paid ments were separate funds. testimony appellant offered The grown tending prove crops to the value of the proceeds The the of community making industry parties talent and of in the appellee’s not all on farm were crops asserts; grown by appellee’s the were them nor appellant as farm, attempting funds. in of establish commingling to the com they by so the made munity’s bank and interest in from deposited in a the funds derived were Those funds but, crops; theory It the sale upon of the apportioned the owners. between never proceeds to trial that all of belonged at the been difficult would have not separate re belonging appellee, estate trial the amount have determined ap testimony. court excluded the community offered and to spectively testimony ruling appellant’s correctness of this pellee. Aсcording to presented by was not assignment from sale here gross proceeds derived farmed years argument; it was error or crops of the for the cannot be reviewed $19,596.99. This by us. community was appellant were The burden bank; Cruces deposited in Las a amount establish sum was community funds liqui paid $10,040.58 was out were paying used in mortgage Assuming, for the appellee’s debts. date making improvements debts on'the illustration, rental value purpose of appellee’s farm (if before lien en he is proceeds of the farm was one-ihird titled ato lien to his reimbursement) secure thereon, appellee produced crops of the be impressed. could finding No such was rents, $6,532.33 issues and was entitled made and no was evidence introduced to follow It would her farm. from establish such fact. $3,508.66 ap community paid The trial court found that increase debts; amount as con pellee’s not the full in value appellee’s farm from was by appellant. the rental tended Of course causes,” “natural not reason than may more have been or less one- value any improvements placed thereon. proceeds from sale derived third finding supported by evidence, substantial parties crops, and the interests will be disturbed. accordingly. pre will vary But it Digressing mortgage paid moment, debts were we are ad- sumed appellant’s vised from testimony estate to ex from appellee’s out of year 1926 (fifteen bank inclusive available funds in the ac of her tent years), appellant deposited rents, traced that could is- count appellee’s sues and separated funds. farm in a White, 26 Cal.App.2d joint 79 bank P.2d v. account which he drew at White proof. will; presump large come kept is under this himself tion that the court held royalties. We satis- that title from oil income appellee. fin- appellant ahead in fied that is far appellee. ancial transactions acquired Property Regarding tract land small proрerty states takes its status com interest, appellant
which asserts munity very at the finding fact: following Court made the acquired, time and is fixed the' real es- tract of land “That certain acquisition. manner its Woods v. area, tate, adjoining 13.94 acres Naimy, Cir., 892; F.2d Leinnewebber above, premises Finding set out No. v. George, 478; Tex.Civ.App., 95 S.W.2d case, acquired and also involved in this Wilson States, 9 Cir., United 100 F.2d. to-wit, married, parties while 552. If property acquired wife it. 21, 1932, patent thereto was March when a very time,. at that United issued Defendant and the fact that a purchase Government, *15 having States been re- same money paid is later out appearing in Deed corded and of record separate or estate spouse the other does 84, 540, page No. at Records Record not such alter status. Colden v. Alexan Mexico; County, Dona New that the Ana der, 134, 141 Tex. 328; 171 S.W.2d White tract, statutory presumption said so that Hebberd, v. 482; Tex.Civ.App., 89 S.W.2d acquired Defendant, became in the name of Merritt Newkirk, 517, 285 P. Wаsh. Defendant, separate property has 442. evidence; not been overcome If appellee personally bought patent was based on issuance of said property by use her credit own scrip scrip, Government and that such then separate it is her property. ques This purchased by Defendant that the cost tion was decided Waring, Morris v. thereof, expenses other incurred ac- 175, N.M. syllabus P. 1002. The reads: scrip quiring paid said for De- 2757, 2758, “Sections 2759, 2762, funds; separate fendant out of her Code interpreted, prop and held that away conveyed Defendant has not her erty purchased by a married with woman ownership in tract.” said money upon borrowed personal her own provided is statute that credit, and money repaid which is out of property conveyed is “Whenever to a separate estate, separate her prop is her writing an married woman instrument in erty.” presumption thereby is that title is separate exactly prоperty.” point her This does not vested her as state the de- cided, 65-401, N.M.Comp. pre Parker, but writing Sec. This for the Justice sumption may court, is not conclusive but be over said: however, testimony, is the effect property to purchase of essentials the “In appellee own money this like borrowed woman, under statutes a married parties credit. She did first state her indi-
'ours, money borrowed Valley signed hereto the Mesilla a note separate to exchange credit, an is vidual thereon, money Bank and borrowed the hus- property. for later debt; testified she as follows: a common alone contract band can alone creditor looks therefore wife’s Court: I $500.00 “The Do understand This repayment. the wife’s credit for Cotton Finance? borrowed from the usually based wife credit Yes, “Witness: sir. prior mar- had which she acquired afterwards riage, or which she “The Court: In what form? sup- devise, gift, But bequest, descent. : “Witness de- borrowed and $500.00was marriage com- pose brings wife into posited, eighty-five, four down in the bank munity afterwards no estate and Valley. They here at draft Mesilla sent a ways mentioned acquires none out to Casa or a draft Grande a check under All has statute. that she or a check out there back and we sent it This credit her credit. circumstances Valley the Mesilla Bank. community, for she asset community debts. way just trying get I liable for the “The Court: am this it, as her belong up. the wife I credit must cleared understand Cotton This As brings you and she Finance $500.00. loaned sole neces- must and it into the Yes, “Witness: sir. property. sarily remain her am, Now, trying Court: I what "The get at is this: At time was bor- what perfectly clear us from “It seems rowed, purpose itwas borrowed said, rea- has heretofore acquiring 13.94 ? acres cases, soning in Texas and California Yes, sir. “Witness: money by a married woman borrowed *16 I prior “The Court: time assume to that remains her individual credit own you people had conferred Shannon or likewise, separate her something knew who about de- that and money property purchased with re- you need $500 cided about in order separate property.” mains her acquire fully that 13.94 acres. Is that (the year Appellant contends in right? property bought) was in which Yes, sir.” “Witness: community separate funds had been so they commingled totally appellee immaterial sepa- could not be whether paid trial so found. of her rated court There for out present estate, court, record, wheth- error. notwithstanding as found the trial community judgment es- The paid it should er was out of and the for be reversed fact, If, her cause bought proceedings. remanded tate. in was for further or with her credit funds obtained On Motion for credit, Rehearing, her
her at that became instant it paid by the property. If com- BRICE, Justice. munity, she indebted was All issues decided the district court paid. in the amount supported sufficiently facts and Appellee effect testified that authority except involving ques- those money borrowed the at the time this was equitable of whether tion lien favor Acres” acre farm called “Fair appellant impressed have been leased, money borrowed was appellee’s farm “Fair called n repaid from rents. her The rents of Oaks”, to secure his of funds admit- individual were her tedly expended by to dis- According testimony, funds. she charge appellee’s separate mortgage debts. credit, money borrowed on her own funds, paid
it was back out of her We refused order new trial be- did as found court. The court trial there cause was no evidence in the record holding not err in acre tract of which the trial court could deter- appellee’s separate land property. mine either the rental valué the farm in the value of skill and declaratory judgment district spouses industry of the farming affirmed, or- court should and it is so land; finding of fact made would dered. impressing support decree such lien. SADLER, J.,C. and MABRY and Appellant asserts that if the trial THREET, JJ., concur. erroneously had not court excluded from prepared evidence an audit from the
BICKLEY,' (concurring part). Justice books, checks and other kept documents made, reflecting such operations, I concur in the decision that the trial would have evidence disclosed error, these neces court committed as disclosed have carefully facts. We opinion. sary error examined This is so basic its audit, and find that might correction involve discloses a substantial change presentation proceeds the course obtained from of amount years court and for the 1921 to crops its decisions inclusive, (and probably does not therein, not) could unwilling I am dis hence share the the amount thereof responsibility belonging close rendering the further de- appellee as finally disposing rental value of the farm cision case on *17 proceeds. and entitled all This rental skill to by the earned amount any against should value could claim be off spouses. The audit set industry aрpellant might tend- for his of the have as evidence. admitted appellee’s the community paid settle funds to prove the derived ed to income separate mortgage so debts. We were well it, appel- farming operations; but with community has been satisfied that the much equities If the failed make a case. lant to overpaid court so the trial would justify the dis- appellant would favor of hold, opinion originally that we were of the proposed Mr. position of the case Jus- this it case would futile to send opinion be we Bickley tice in his question, for new back case. disposition of the would follow that appellant’s rehearing brief on has not the whole rec- But examination original ord, trial would our that a new us conclusion seems evident convinced According change to the testi- the result. not correct. was appellant, complete he had mony con- impress proceeding such A farming proceeds oper- trol equitable prin equitable purely lien is deposited years during all these ations ciples the evidence both apply. Now community. He should have all appellee, together appellant and appellee’s separate from the kept funds audit, community tendered show fact community com- funds. The proceeds of farming all received whole fund mingling constituted the com- operations (except munity property does not affect the case. paid appellee’s $10,040.58 to settle sum of satisfied, community, was en- we notes), amounting many mortgage thou many thousands of dollars of riched appellee’s This dollars. included sands of funds, appel- of which appellee’s funds, be measured lant claimed half interest. the community of the farm. If rental value any to receive remuneration entitled for appellant these Under facts debts, mortgage payment Appellee required equity. to do be community equity and give appel dо must against entitled to off at least set be appellant for her funds which lee credit for appellant has claim funds commingled with funds paying mortgage debts an equal used If eighteen years. the amount of the funds turned over amount of this can rental value ascer (who by appellant had control of them) to years pro in which the tained for community. White, White 26 Cal. crops applied pay ceeds of the 524, 79 App.2d P.2d 759. debt, mortgage ment no doubt exceptional subsequent ascertained for the could be In an reluctantly appellee’s farm powers protect in which our rented exercised inherent years person, and'during rights, to third which she fundamental and to that end de- binding practice parted from the rules *18 Rivera, N. parties, Gonzales v. 802; calls this case
M. 25 P.2d power. no such exercise
for rehearing should be for
The motion It is so ordered.
overruled. MABRY, J., con-
SADLER, J., and C.
cur. participate. J., did
LUJAN,
BICKLEY, Justice. special con- reasons stated in
For the grant- opinion, I favor original
currence rehearing.
ing Krehbiel, Clayton, appellant.
A. for J. P.2d Easterwood, Clayton, ap- O. pellee. v. HERZSTEIN. GILES No. 4872. MABRY, Justice.
Supreme of New Mexico. Court appeal by Herzstein, This is Simon below, judgment defendant fa-
Feb. appellee C. Giles sum of vor of J. jury upon tried case was to a $775. seeking recovery of complaint al- $1950 legedly owing as one-half buying joint sell- ain venture made ing cattle. need con- here
The sole challenge appellant’s going sider support evidence in sufficiency the judgment. of the verdict notes five secured agreement terest therein. this oral mortgage acre tract appellant’s claim the basis recited, and then it is stated therein: farm, which, appel- the 97 acre interest “Whereas, my Laughlin husband W. H. asserts, performed by fully lant paid has out funds said parties. Bank First National Las Cruces
Notes
notes part off, bursement for his funds fully paid plaintiff claimed were improving appellee’s used farm. al- pursuant have been to and in made further- legations paragraphs of increased value agreement ance of the claimed set out support appel- preceding finding, being made to the ef- 6% way claim estate claim of title and not said real the value lant’s fect n $10,000 plaintiff and that a for reimbursement for his of com-