26 N.M. 425 | N.M. | 1920
Lead Opinion
opinion of the court.
This action was instituted in the court below by appellant against Andrew M. Hall for the purpose of foreclosing a mortgage, .given by the said Hall on October 23, 1911, on certain real estate in Eddy county N. M., to secure payment of a promissory note for tbe sum of $3,500. The appellees intervened in the court below, setting up the fact that the real estate in question was community property, owned by the said Hall and his wife at the time of her death in the year 1904; that interveners were the children of Hall and his wife, and as such, under chapter 62, Laws 1901, were the owners in fee simple of a three-eights interest in the land.
The case was tried in the court below on the theory that the surviving husband had the power to sell community property for the purpose of paying the debts of the community without taking out letters of administra-tration. The court found, in effect, that there were no community debts, and rendered judgment foreclosing the mortgage upon a five-eighths interest in the real estate, and refused foreclosure as to the interest of the children.
Appellant has appealed from this decree, and contends that the evidence shows there was community indebtedness, and that, assuming the evidence did not so show, the burden was upon the appellees to show that there was no community indebtedness; these two propositions being based upon and supported by the case of Crary v. Field, 9 N. M. 222, 50 Pac. 342. That case was decided while section 1365, C. L. 1884, was in full force and effect. This statute was originally a part of the Kearney’s Code, and was repealed in 1891 (chapter 68).
The judgment of the lower court being the only one that could be correctly entered under the law, it will be affirmed; and is so ordered.
Rehearing
On Motion for Rehearing.
In the motion for rehearing filed it is asserted that estoppel as against the heirs of Mrs. Andrew M. Hall was pleaded, and was overruled by the court and assigned as error, and that in the original opinion this court failed to discuss the question. "We did not consider it, because we understood that it was urged only in connection with the proposition that under the Spanish law, on the death of the wife, where children survived, a new community was created, of which the surviving husband was manager. This point was disposed of in the original opinion.
The motion for rehearing will be denied; and, it is so ordered.