*1 that, summary judg conclude We The status
ment erroneously granted. emancipated, minor, whether
question decided as fact cannot he Libby, 53 N.M. Agnew law. v.
matter of House, 54 775; Michelson v.
56, 201 P.2d Klune, 2 'Colby 861; v. 197, 218 P.2d
N.M. con
Cir., Negligence and 872. 178 F.2d ques factual negligence, other
tributory
tions, issuable. are likewise be reversed with di- will judgment to enter an order the trial court
rections to upon its docket and
reinstating case inconsistent here-
proceed a manner not it is so ordered. And
with.
LUJAN, J., and Mc- C. SADLER
GHEE, JJ., concur.
COORS, J., participating.
NELMS
No. 5424.
Supreme Mexico. Court Newof
Jan. 1952.
Rehearing March 1952. Denied
: parties, appellees, Dudley Cor-
additional nell, . Mary Cornell, Lee Jerry Eva . Curtis, Magnolia Company, and Petroleum ' Corporation, Delhi ground Oil on the. premises they rights claimed some n question,-hence, necessary parties for a rights. filial appellant’s determination of appellant motion granted, filed being denial general Nealy L. Nelms’ owner- ' ship, against Nelms, a counterclaim n crossclaim against appellees brought those ’defendants, pos additional alleging possession, session, ownership premises involved and praying quieted. title be Eva his wife of *3 Nealy Nelms, claim, the L. answered cross appellant’s denying claim and further al leging Magnolia Company, that Petroleum Curtis, Corporation, Delhi Oil and Jerry and gas were owners of oil leases the premises. Nealy interest in the L. royalty Stephenson, Bigbee, Donnon Harry answered, L. Nelms the same con making Fe, by tentions made his with the appellant. wife fur as Santa for appellant allegation occupy ther that Cornell, Albuquerque, Hervey, Dudley ing land his tenant. the as Roswell, A. San- Hinkle, & Manuel Dow Corporation Delhi Appellee Oil answered Fe, Turner, Atwood, White, chez, Santa claim, affirmatively cross the that pleading Francis, Dallas, Tex., ap- for McLane given oil an and gas Nelms had lease to pellee. portion Dudley land; a Cornell Petroleum Magnolia Company . that had ac- COMPTON, Justice. the lease from quired Cornells and it that acquired (cid:127) an thereafter had undivided one- Nealy L. filed Appellee, suit in the lease interest from appellant, Miller, quiet Magnolia half D. title against Company. It further pleaded situated Petroleum lands Rio in Arriba certain County. Appellant bring Magnolia Company in Petroleum moved to that had ac- quired except up additional and leases for he gas oil a conveying set mineral deed prospecting, of development, an mining and undivided three-fourths interest 28,500 surrounding, approximately acres minerals question, under land from and proximity to, in close in- lands Nelms to Dudley Cornell, and subse- volved; quent that said for oil land was suitable delivery of mineral deed a Cor- from and that same was gas nell to prospecting him. unproven acquirement by the time of appellees, Cross Cornell, filed a disclaim- Magnolia Company. further Petroleum It er. pleaded Mag- agreement that under an 4, 1937, On May appellant-and Nealy L. Company, Delhi
nolia Petroleum Oil Cor- executed the contract in question, poration drilling area carry reads: therefor, had as a consideration ac- “State of New Mexico: quired by Mag- half one of the interest held County of Rio Arriba: Company; nolia that Delhi Oil Petroleum 1949, Corporation, in the summer drilled of Agreement “This made and entered into and completed a on said block to well day May, this 4th of and between depth feet, at an ex- approximately of L. Nealy and Eva Nelms of the first pense $100,000. Delhi excess of Oil part, A. D. Miller part of the second Corporation specifically pleads was a United Bank Junction, States Col- of Grani purchaser bona fide value. orado party third part, Company, Petroleum denied Magnolia party “Witnesseth: That whereas appellant’s pleaded affirmatively claim and part party the first has to the sold portion leased that Nelms had land part parcel second one land containing gas operations Dudley oil and Cor- following description: acres nell, acquired from whom had lease. (Here follows description.) appellant pleaded It claims also under “Consideration paid This $2500.00 dated that ap- May contract following, All pay- Cash other $100.00 acquired thereby; no' title pellant paid annually ments are as following: to be *4 only purchase a was contract and document each on March 1st with $300.00 5% paid, price having been purchase the years. period eight for interest of a Now plead- It also the had been forfeited. same Thereof, party of the second part, if the or purchaser fide was bona ed that a anyone for shall on or before him the due- notice. value without notes, promissory dates well of said and tru- answered, making repay the the same sum of in- ly Curtis con- said $2500.00 per Magnolia Company the of tentions as Petroleum terest thereon at rate annum 5% them appellant retained notes then them to who maturity promissory livered said from of financial until the over date Due to shall turn of trial. party part the the third of difficulties, appellant the second unable deeds to was and the deliver said the payments but due. It is agreement, this when conceded in of party fullfillment part shall the extended the annual due date on notes was party if the second said twice, paid said that the was pay the sum interest $2500 fail refuse thereon, March, then the 1938. the interest agreed, part the third shall redeliver party of said the Whether there forfeiture deeds part said first party to the of the Appellees question. contract is basic and void. shall null agreement Nelms that it has been forfeited. contend part agreement of this “It is also Appellant not. contends has pay part shall the second party that the The the court without cause was tried to the said be levied may all taxes which, the court jury, at the conclusion of the calender parcel beginning with of land findings made the following fact: year 1937. “Witnesses: extended in 5. Nelms plaintiff That F. Hill writing, payment the time J. Lamb F. notes, granted first two no further ex- J. Nealy L. Nelms tensions to Miller.
“/s/ defendant Eva /s/ 6. That defendant -at Miller, Partiej part, of the first hereto, material on or about times and from D. Miller /s/ time, 4th, present May until the has part. the second Parties of open, possession been notorious Bank of States Grand United same, lands and farmed the addi- Junction, Junction, Grand tion, has the income there- received all of Colorado from. Eli, D. Cashier O. /s/ period 7. That in- during all of the part.” Parties of third volved, whatever taxes were assessed signed,»ap- the contract theAt involved, against property were assessed eight promissory notes executed also pellant Miller, in the name of defendant each, payable annually sum of $300 in the paid part by taxes thereon in Soldiers 1, 1938, to 1945 March inclusive.. exemption part and in in cash. then contract, and deed were sent notes, the Junction, improved That Grand 8. defendant Miller agent at escrow to the extent, to some January, 1947, property bank de- that addi- In Colorado.
137 Com- cleared, Magnolia con- the Petroleum lands were and a house thereafter tional in- ob- undivided one-half assigned materials structed, principally pany an out of cov- gas on the to said oil lease terest in and and existing tained from house another defendant, the cross premises prior to the defendant Miller’s said lands to ering possession Corporation. thereof. Delhi Oil 1949, May 11, the said 17. That on finds that That the Court further
9. Nelms, his and M. L. Nelms Eva Nealy correspondence considerable car- there was wife, Dudley delivered Cor- executed to and plaintiff, Nealy the between L. ried on un- covering nell a certain mineral an deed defendant, Miller, with A. D. Nelms and the to all three-fourths interest in and divided property question, in that respect to the oil, and and gas the other minerals in of inconsistent the the same is contention may the produced under be from and that Miller, defendant, A. the D. Ni/2Sy2, 17, Twp. N., 24 Sy2Ni/2, Sec. said 4, 1937, May was extended contract of W., N.M.P.M.; 2 deed Rge. mineral said time, or constituted from subject gas made oil and lease being defendant, mortgage or A. D. Mill- 22, 1947, February L. by Nealy made equity property. er, to said any had and Cornell, Dudley wife, to said Nelms and February 1947,the said 14. That land. covering said wife, Nealy joined by L. Nelms his plaintiff, 25, 1949, May 18. That on Dud- said a valuable consideration Eva M. joined by ley wife, Mary Cornell Lee his Dudley Cornell a executed and delivered to Cornell, and executed delivered a mineral oil, covering lease and mineral gas certain defendant, Curtis, the cross Jerry deed to N., SV$N%, Rge. Twp. said 24 Sec. covering three-fourths an undivided inter- W., and the said Dud- granting giving oil, est in and all of gas and other prospect right to ley Cornell exclusive may pro- under and that minerals and drill, oil, for, produce explore, mine and SJ/£Ni/á,N%S%, said lands, duced firom the Sec. other minerals from said and all gas N., 17, Twp. Rge. W., being and the lease the An- described being and by interest covered entire mineral deed Magnolia Company Petroleum swers Dudley wife by Cor- Corporation. Delhi Oil 11, 1949. May nell on lessee, 24, 1947, 15. That March said oil joined by Mary gas said lease and un- wife, 19. That Dudley Cornell his Cornell, three-fourths interest in made, and to all executed and delivered Lee divided oil, acquired and other minerals gas assignment gas lease an said oil acquired were for valu- Petroleum and that said defendants Magnolia Company revive, estoppel and with- stitute an' good extend, considerations in faith- able keep claim of knowledge any way out adverse original alive purchase defendant, 4, 1937, A. D. Miller. agreement May between said of. *6 parties, and that the defendant A. D. Mill- The court then -concluded: er, interest, had no vested either in law or (1.) Agreement That Purchase the equity in and to property. in said plain- into the by entered and between and (4.) payment That of such taxes as defendant, tiff, D.A. Nealy L. Nelms and paid, defendant Miller improve- and the 4, 1937, Miller, an ex- May, ments that he made upon the property any convey not ecutory contract and did amounted to no more than reasonable rental prop- rights, in and to the title interest therefor period for the involved. defendant, erty to the by covered the same (8.) That on February Miller, 22,1947, said did agreement A. D. and that and thereto, prior times the plaintiff, mortgage. Nealy not constitute L. Nelms, was the owner simple in fee of the defendant, Miller, D. (2.) That the 17, Twp. Sy2m/2, Ny2Si/2, Sec. N., 24 Rge. the terms of the rights forfeited all under W., 2 Ri-oArriba County, New Mexico. 4,May 1937, contract of executory purchase (9.) That Magnolia Nea- made and into and between entered Petroleum Com- pany Delhi and Corporation Oil D. Miller and ly L. Nelms and said A. are the owners and upon holders null that same became and void oil gas and lease made and D. entered into refusal the said A. failure and on February 22, 1947, agreed pay Nealy Miller balance of- between L. wife, Nelms and Eva M. and the escrow created covering SJ^N%, consideration Nj^S%, w,as 17, Sec. Twp. N., properly the same 24 Rge. W., in connection with par- more ticularly by the Bank described United States terminated in the Answers of the Magnolia Junction, the deed redelivering cov- Petroleum Grand Company and Delhi Corporation Oil property Nealy and L. Nelms. ering said that said oil and gas lease is in good standing. correspondence (3.) That carried on plaintiff, Nealy L. and That (10.) cross between defendant, Jerry defendant, Miller, A. D. Curtis, in is the introduced owner of an undivided three- -case,and in this the action of the interest evidence fourths oil, and to all of the gas therewith, connection did parties other minerals in and under and and that Sj^Ny2, produced either new contract agree- may constitute from the said the plaintiff between and the N%SJ^, Twp. N., defend- ment Sec. Rge. 2 W., ant, Miller, did the A. D. nor same subject con- to the oil and gas lease held by . edge Delhi Company and adverse claim the defend- any Petroleum Magnolia ant A. D. Miller in and to the lands. in- Corporation covering said lands Oil volved in action. defendants, Magno- That the cross (11.) The findings challenged principally are Cor- Oil Delhi Company and Petroleum lia on the ground support they without Curtis, acquired said Jerry poration and assignments evidence. There are 81 interests mineral leasehold gas oil and of error which are argued follow- under faith good consideration a valuable ing points: the de- claim of notice of without cross Miller, “Point fendant, said A. D. purchasers of said fide are bona defendants “The document conveyed of May
interests. legal title to the land involved in this action appellant. ac- in this involved the lands That (12.) gas oil “Point unitized
tion have been II development, with mining and prospecting, “The documents May 4, 1937, executed block ‘comprisinga lands surrounding other considered surrounding circum- ‘ lands and that said aores; and 28,500 *7 stances and the parties intent of created time at the unproven 28,500acres were said security arrangement a in the nature of a Febru- dated the lease of acquirement of mortgage or vendor’s lien appellees in from Dudley Cornell 1947, said 22, by ary could be by which only enforced as- Nelms, and the Nealy L. plaintiff, foreclosure. Magnolia defendant thereof signment “Point III acquirement and of Company Petroleum “If 4, the transaction May of 1937 be- Corpora- Delhi by Oil therein interest an appellant appellees merely tween and develop- with connection tion; and sale, rise gave of appellees to a contract prospect- gas oil and lands for said ment of required Nelms would still be to foreclose development, the cross de- mining, and ing, their vendors lien or to at de- least make Corporation, in the sum- Delhi Oil fendant payment prior mand rescinding. day the 28th of prior to and 1949 mer of “Point IV completed and a drilled October, 28,500 acres said of May area Document on if the of well “Even producing contract, right expense only feet an and if a to for- of was depth of to a existed; appellees development Nelms have said feiture ever and and $226,250.00; such and performed are and actions by their waived expenditure enforce it. Corporation estopped without knowl- to assert Delhi Oil said “Point V case this is sat. you. with this take expenses care of taxes & papers of Cornell, “Appellees Dudley Mary Lee expect I would a mortgage with deed Company, Cornell, Magnolia Petroleum payment notes of each itas comes due & Corporation Jerry Delhi Curtis are Oil abstract title payable *8 possibly can this spring I & proposition Apr. 4-1937 clear able to something be like still Miller—I your “Dear Mr. received letter crop. it get& into acres 27, and believe we March can of ahead say plan The pay you payments can as soon the deal. of “I $100 as we with would papers up, the a?right. can made of coars in be completed it contract various times consider and papers are when
“$100.00 satisfactory way very it. to handle May 1st.) (about 1st, 1937 six after months —Nov “It has several years been since I left $250.00 equal an- eight place remaining I $2250.00 the when left it had it wire 1st May payable or before the east along on fence payments nual line. And on north part at unpaid Interest on west boundaries year. each fence was about past pay I will year. each payable inside twenty feet my line. this be- All'of 5% the $100.00 receive soon as I longs place. due taxes as with the I also had a fence on n out yourself it pay could the south side but enclosed some land that receipts with tax send the was not mine years and after sup- these .$100.00 I pose hundred. there nothing balance left lay claim to so as far I know there is on nothing have you to might “It be better for the south side. there and are yourself abstract would you. I less trouble for it would be shape “The is as you said % charges. pay half the.abstractors mile bymile piece with a 40 acre at the (Description northwest. of land follows.) different have a like to “However would those from papers on the deal kind “If find that this kind of deal suits be me it would seems to mentioned. It you let me know and I will have the papers you agree- up with a contract better draw made out at once. as scheduled payments to make
ing “Yours very truly, sound convey myself agreeing above Nealy L. (Sgd.) Nelms then would property to you. -title “Lindrith Mex N. would sign we up the deed and April. 8-37 copies, you three sign the both contract .“Mr. one copy one would have would —I n copyand “Letter copy one remain with received am with would satisfied proposal except one placed in escrow would like thing deed. The deed would changed & I Bank believe will agree, of Grand would United States Junc- payments like for the to come say due any When you preferred. tion bank n thefirst guess or March. Feb know completed deed wpuld payments were years that there well as I here that pay- as automatically If the yours. become crop to me. iswf much raised & case defaulted it revert there of a ments were would process payments due the fall legal coming would be failure the In neither case hardship me. Where if sort of bought I have on this work necessary. *9 Chama bank give me would be all it would with they spring due in the me. are by way I you hear month & are a it World War a chance make in winter Vet. to to chance there was a soldat give my by it me a outfit thing another would the name down at of Nelms price hold was 'but crop in case recolet over a dont his first name. Bat D 127th harvest. H.F.A. the costs protects “Will close you
“The contract hoping to hear you from soon. of/ allright. Where a “(Sgd.) Dewey foreclosure which is Miller. “(Registered: few mortapi? purchaser April 13, a gives deed Stamps) 1937—18/ dig up payment hut months if grace . “Grand Colo Junction payment you make date of will Apr. 15-1937 protection the same spring give it me will “Dear Mr. Miller —I your received letter protect you against the of fore- & costs also say and will that it alright will be to make closed. the note with the payments due on March you way understood “Now year first each each time eight for $300 papers as the are made as soon down $100 years. would payments which $300 with “I think I am going to have a chance to a clause want I would with interest at 5%. come over there in about two weeks and we it can that states all be contract can make papers out the then and it will be would suit guess time (cid:127)payed at finished up about quickly as we could rights the mineral presume you. do it by mail. I realize that it is time to place. right with go have them begin farming so can go ahead when- ever you wish good pa- some without having waiting “We are weather here pers. is sage suitable for & I clearing now which “Sincerely, got snappy if I 70 acres ‘‘(Sgd.) Nealy L. Nelms every- beans. cleared in So if “Lindrith N.Mex. sati/actory with thing is I wish April 23-37 me a statement send of sone sort “Mr. Nelms me start clearing would enable & then papers your iues, “Received you get out & send litter & glad you when am signature my down for can come like you say them will down as kinda pay Amerra & & mail & prefer taxes send slow I would Terra talking papers with time. (over) writing any the balance it is alright to have guess papers “I “I have started clearing sage expect to the Grand bank unless held the have around 80 acres done in the Junction next two bank at a in this state if should so the weeks. camping averaged & a about figure half, a sack
“Bring family % n with while Although ground had a to the the old We sack acre. are here. us dried that made night very the roads are done there last well as some light snow shape per- out acre as much as I am dis up pretty good so tonite & 6% here couraged prospects Albeq. farming *10 realize I of had all old you. because I seeing had “Will be right, A. D. Miller “(Sgd.) I could come out all even ground of dry year august & claim that this a they (cid:127) Junction, -Colo. “Grand averaged very is unusual. Mr. Hills beans 1st June ' p.a. on sacks 100 acres. a n “Dear papers arrived Miller—The Mr. against it this up “Now I am fall & sure to over me. been turned my copy has that, I the taxes about all offer is' can bank, me Ela, told cashier “Mr. payed, try sure like but I to will Hill. He also Mr. yours that he sent to will, place year another have about I the same letter you, by he notified said year put 60 acres second to to beans of land fee of $5.00. be an escrow there would crop, & would clear 30 more for feed a part. There was error on his This an dig I I have to a this more if will well can. him had told charge already but I a $5.00 also, spent my year about I a % pa- it care when take I that would hauling last summer & will have to water there is today did so so pers arrived. fencing. do some more Mr. Nelms Now paid you. expense to be this part no proposition is a fair for you I believe this n Sorry is O.K. now. happened but this are get- here considering that some renters family & yourself this finds “Hoping crops & years clearing break- ting 3 smoothly alond going everything & give well me a ground out new it will ing we a providing out have break remain, to chance price next a fall. get season & fair fair truly, very “Yours Nealy L. (Sgd.) this hoping finds folks al close “Will N. Mex “Lindrith Xmas Merry & set for a well Dec. 10-37 truely “Yours n “Mr.Nelms Dewey (Sgd.) Miller. it seems Sir, regard to N.Mex “Dear “Lindrith country I am langage of the Feb 27-38 this “Mr. dry august here We a up. had blowed for interest you check less much, sending “Am didnt do ground beans & new year taxes were letter. taxes this & made the some harvesting worth some wasrei 1 u astray exemption recently.
& some cov- here my army cents & When me write Regina it ered adress to they & in state in care Grigs- them this this of G. year D. by, Hcipt aimount is the bought wowf issue the full he man that where out Hill. Mr. exempted paid the- they just truly mark “Yours seat as (Sgd.) books. have to to the co. got A. D. Miller passable soon as the are & will roads “Lindrith N. Mex. co. a little note stat- treasurer send 4-39 Jan. my exemption, paid by are ing taxes “Mr. exempt in N.M. Veterans $2200. “hope year this finds folks all well & up your “Would taken liked well, happy. We are all very have had a proposition just other couldwt raise the mild winter so far. I am sort of at money & have left to farm with. mercy again year, this have done this better proposition year “As understand this last, will than had worth of $74 com- beans payment year one making pared exteni the more worth in $35 37—have my seed & last note 45. We due have ear feed for year this but money no will good season this frost marks of has enough work out living, for a last spring I been out 3 weeks & has been raining plow had to out to enough buy month. snowing m-os-tall (over)' plow fuel buy mine seed, by& *11 “Yours truely the time I got to mine is pretty was late
(Sgd.) A. Miller D. fact it is towas late & .beans most of fall, my beans frosted last cleared 20 acres spoke place Hall going “P.S. You sage year last get planted but didnt it spring this I sale believe can sell it be for year will clear 20 more this have about 80 you it sale if you is for will advise if as acres cleared now will have 60 for & beans & terms. price believe can make as much as 4 sack to the A. “(Sgd.) D. Miller year acre 3d. have & found the 1st. “(Registered: Stamps) Feb. 18‡ 1938— years good icond are not so for beans but “Lindrith N.- Mex. will raise fair corn or oats. Mar. 25-38 “Mr. “About this recipts tax over was to A.T. yesterday they a letter & my “Dear sent with a check found exemp- sir allowed past $78, 38 two tion for did about months but nt alow in it for it for but you just from if I can a get get heard wondered think court havent order & it alright registered, goton it it was Lgion up had alowed. The taking is re- this there, gone cipt has. been some mail that has general buwness & the attorney says. guess got any havewf now recipt money pay we are so as entitled to a get get interest with going soon as settled can but there to be the new officials is some open pay- up work If I order will here soon as get them. cawf court as the snow a goes (we off yet.) have (over) 37 tax. a foot snow enough I think I pay you can make give me you will “Now Mr. if months, next 4 is it W.P.A. & do»f appreiate it years try will another I sure just know how much each man is alloted depth to the heart have my because month, each but it is think around $40. yet here & havent .put in lots of hard work get If can clearing some plowing sage much as receded return as half to do can pay you Money sooner. is sure worth spent. if the believe scarce here now faugh seems there isnt be worth with in the raw it will $2500 any in the country. going Am to start did- just get- I am sage 100 acres of cleared. ding a well next hauling week this water loose out where to ting along age at gets sure old. me. There pretty hard now on a places that was sold some here “Will hoping close finds well, this crop- payed for crop payment untilZ 1/3 “As ever a friend have often buyer the taxes paying with the (Sgd.) D. Miller place that bought wished I could of “Lindrith N. Mex hardship on work such a dowf 6-41 Jan. planting dry year farmer new “Mr. ground. “How are ’hope will I we folks to hear from as soon as “Would like fairly well, a bit going of flue around this agreable possible so this is would like winter here. It is has been an awful wet winter, get dug a well this tested for winter so far lots of wet snow. IWell last summer & water the house south of am still sort of yet down but good raised a ft, dig water didnt time to hit crop feed last season amso setting pretty out. good as I have feed & enough seed truely “Yours carry though me clear so if nothing un- (Sgd.) A. D. Miller hapins usal will be pay- able to make “Lindrith N. Mex. ment next fall. I have done considerable *12 23-39 Jan. improving last built a house & out Nelms “Mr. building on the east last spring appreciale your letter & sure would closer to shool. The “r-iceived so old house extending notes, rotted on the north it kindness in I had side till was about this"fall, something. people leaving lots of here am down, to build so had to fall yard going for another to do some erwsion dam soil work such put in a 700 Have spreader this summer as expect make another dams & terraces under tank & you allright stay AAA So if it is will larger. some keep with it payed taxes untili can .& but havewi found testing water for “Am pay you some. end, hopes of up am in any yet at this respeably “Yours the house. finding some close to (Sgd.) A. D. Miller. hoping this close for this “Will “P.S. We have getting some trouble our you all well. finds mail you so when write to be sure I sincerely A. D. Miller. (Sgd.) “Yours registered. it it should be you ad- you to me wish write When “P.S. “Lindrith N. Mex. Grigsby. Regina in care of G. D. it dress 3-8-47 “Lindrith N. Mex. you folks, “Mr. how are we are all 10-41, Nov. well here. “Mr. “We have very had some cold weather you We are all well are folks? “How this winter 46 night. below one you thought I would write here down “Thought I & tell that I write things going how are let know letter & arrangements moneys for made some & Sept freeze on the 8th here we had a 'hard pay you time next Do can some month. the beans & corn & feed froze all place, the Hall you folks still own so & grain that had were were crops, those it, want to sell think could right grain as ríe oats & such wheat you. (over) do, If sell for let me year, just had but us good you want for it. The know what Lofton Yz froze, my & corn had corn feed were beans n joining on the west me section sold last just p.eath of the ears & was be- ice in the $1,200 & the same fellow month wants it & dent so it ruined the beans gining to buy another sec. % starting pinto few just harvested were Resp. “Yours any good there are not too their beans but (Sgd.) A. D. Miller. beans, plant- figwering many am frosted “Lindrith N. Mex. wheat, barley ground oats & ing the old 4-20-48 sage more clearing some beans & “Mr. year, I have lot corn next done a of work up give & hate to if I
here dont loose folks? We are “How all well here, heart believe will hit intending sometime. have been There write *13 in- place. I have a got .by contract. I kinda this m these about took for sometime trying people to same get an outfit the—is would like this to formation place nothing, for a tax title I had place on the iofton place from the state this buy investigate throue- yet bought crop payments to on spring, had time last this I have»# far, there is it seams so ly what I learned banker wanted some land here I made so paying I started taxes before some back a deal with him to turn him the Lofton ten any for is»# there them, sure I am well place in return money & he was to loan me years back. enough pay you enough to & extra to caused has»# here valley plant scare clear out the rest this this oil &
“Now it possibility a there is yet of coarse any boom wheat, hanging to he has been fire for a here. oil there is some my deal, now on end of the now he says enough he can loan me pay you to here along for have starved “Since any but ca»# loan me to clear (over) the place you for the paying that in I feel years place, guess rest of he knows I the mineral part of have»# have a I should now I think a got here be oil a in the chance there should wowrld to right, pay if him un- one any for plenty would get of a Sec. less I can the rest of this & cleared % there should hand if other family, on the planted wheat, I have found out how be worth would»# it on oil 'be raise winter wheat here & I believe I can me an give can farm, so much as easily pay out with it. mineral agree can & we abstract going “I am a poposition, up. it money clear I can raise right you consider renewing our contract Resp. Yours say making years. new one five Miller “(Sgd.) A. D. enough money get I can raise I think “Ans. soon. planted of wheat 150 acres this fall. around “Lindrith N. Mex. want to do But if do»# this will 5-19-48 $2,500 pay you out, & ahead & borrow place I About been “Mr. money now so if want can county Seat, ca»i find & the to Santafa up & send New an abstract the taxes. It seems irregular thing Bank or send it to me &-I will State 'Mex. go people had to was that these lawyer to look at for a it there if it take my pay taxes with ex- me to ilegal get the deal though will as is all place with out body elsei some emption on bank handle possible can let this quick know we have they did»# contract coarse tranjction will let about the abstract as soon is where know on this end as that getting I an the loan. possible. Resp.
“Yours truly, very “Yours (Sgd.) D.A. Miller. Nealy (Sgd.) L. Nelms Junction, Colo. “Grand “Lindrith N. M. 1, 1948 *14 June 15-8-48 “Mr. your “Dear Mr. Miller—I received letter a place days regard ago few to Wednesday “received letter & have things present at we say as stand will you contacted Mr. If Adams. will send new to don’t think would want make we too New abstract Mexico State Bank Albu- you get the to can
contract but $2500 if Adams, querque Mex. Attention R. N. E. priced con- in the old pay off the as insure handling bank, which will its safe will be O.K. tract that lawyer ins^eiion. just not found out how to far I have “So moneys the deed & can be “Then handled there are no abstractors abstract as get the you any doesrei there. If it make difference county to the county writing but am in that I take the 160 A of will mineral the house knows about It he it. to see what clerk is on. I think it has to be stated in the deed will may can furnish one. So that he portion you pre- reserve & then I which Ias can. it as soon get my sume half have to be will transíered when I come over ex- get to “I didn’t to me. always get time off from pected I can’t to as notify “Mr. Adams is me as as soon am planning to but I want
my job when papers are all in then I order will come get I can yet if off. over come papers & sign to town & finish the deal. Miller, right mineral on half of it (Sgd.) A. “About D. don’t know end suggested you (reverse letter) of above side —I want but that would not of it “give him an answer after the first to me. would hold difference September and I still not wanted me to. end whichever satisfactory arrangements. feel yourself for me “Hope family this finds that now is to my well mon- hope long. ey to see before too And it so see out of what can do and let and I will rights belonged mineral soon as can land, please me know as to the Sept. after other offer until 1st. hold off the advise. truly very
“Yours truly, “Yours Nealy (Sgd.) L. (Sgd.) R. E. Adams. Nelms. $2500.00 “Grand Colo Junction “Mills Located at Aug. 23, 1948 Canyon, N. Mex. Heck “Dear Mr. just Miller—I have received Co. E. Adams Lumber R. letter from begins Mr. Adams Point: “Shipping N. Mex. Springer, look as if the three us will be able Canyon, Springer, via Mex. “Heck N. do together. business says He didn’t he 18th, 1948 August, understand that I was keeping part of the NeZayL “Mr. mineral right. displeased Also he seemed Junction, Colo. Grand that there is a mineral lease already in force. Nelms; '“Dear Mr. far As can tell there is nothing further I can do about it just received, so> will and ask with Abstract “Your letter write let say agreed the time I to Mr. will him to return the abstract if cannot he see 640 Acres but the Miller have $2500.00 way his clear ahead with the deal as *15 any made for Oil had been no there Lease agreed on. my land, recent conver- part of very truly “Yours Mr. Miller he that the sation told me with (Sgd.) Nealy Nelms L. place, rights went with the conse- mineral (cid:127)quently must some little misiun- there (5‡ Stamp) Air Mail you (cid:127)derstanding, for know that without the “Lindrith, M.N. rights mineral land not warrant this does 10-18-48 per I (cid:127)a acre. Neither do like loan $4.00 “Mr. you that the oil have too lease “I finaZyconected Adams & I think he n welleven tho not want to reserve did qwaier just using that of mineral right Acres, just in other do words I not see an excuse not to make me the loan. I way loan my clear to that amount of mon- partner supposed get think his this only ey on land under the this conditions I understood and that place. jack pot, .as them is the It of left me in a has sort pay you. the for a get money by may couple I first loan to can take a
but It deal, of weeks. night of our year all on the terms truely “Yours truly,
“Yours Miller (Sgd.) A. D. Miller. (Sgd.) A. D. “Lindrith N. Mex. Colo. Junction, “Grand 7-13-49 3,1948 Dec. “Mr. Nelms sorry I been have “Dear Mr. am Miller —I “How are we all here folks well letter, my your but wife long answering so having but lots of rain & the sure roads are We what do. I have been undecided muddy, kin zggrivayting. is da dispose of been anxious to have never place finally “About this raised have finally if we could place but decided money now, get so we can out straitened next few money get the out of it you retaining with 160 acres of mineral good advantage might use it months we right going & 160 the land agreed. with as still want here. So for $2500.00 split long I think it way should be right the 160 keep we the mineral & a wide long. mile *4 agreed we at the lower end as last acres will still business. We do summer we possible “Let know soon & we me possible after the know as soon as like thing can off or minds. Resp. January will be able “Yours whether
first of (Sgd.) D. Miller the deal. to handle “Grand Colo. Junction family yourself and “Hope this finds Oct. well, etc. Miller. “Dear Mr. truly very “Yours very “It was hard to understand what Nealy L. Nelms. (Sgd.) telephone over said so I am not “Lindrith N. Mex. just got everything case sure 12-28-48 say unable to understand me will were “Mr. longer own no the mineral ago, letter some time “recited keep there. However did down a bad cold that settled been myself. itself land share small *16 just I lungs got considerably can get figure and a better my where for sale original contract made and going we negoiaiing am to town & start out so than binding longer year I since other no consider and make an effort to resume nearly you payments. all of to meet failed
provisions of it. “Q. Then you did the same thing, you didn’t ? A. After am—I land with- willing “I am now sell the specify I any time, didn’t length certain At this right for out mineral $1500.00. I told if he go that wanted to him ahead price I be a cash deal as need should pay live there and the taxes and see badly. you money pretty But could make position whether he could to start payment ar- a substantial could be terms not, paying or it was with me to ranged. stay have him another under those say money I I need and want “As conditions. I don’t know as would call in a deal sell so af are not interested extending year, the notes a but it was Al- probably it in it will advertise permission stay on another year. buquerque paper a es- or list it real “Q. notes, It was understood that all man will until after the tate not do this performance under the contract ex- year. know first So let me before year, Yes, another tended it? wasn’t A. that time if want to deal. general was the idea. truly “Yours (cid:127) “Q. Now, in 1939 had similar Nealy (Sgd.) Nelms” L. agreement, you? Well, didn’t ex- (Italics ours.) similar, actly began that time I to see exam-
Appellee, Nealy on cross L. quite it was doubtful if Mr. Miller ination, testified: .payments, would ever be able to make his simply and I go told him to ahead and make “Q. you, Now, I will ask Mr. his home on the and take care of the testified, believe, you have that in -1937 taxes until such time as I saw there was you extended the time of all the notes one something else could do' with place, right. year, is that correct? A. That’s 'Stay he continued to- there under those “Q. Did advise the bank of that? circumstances. There was nothing said A. No. extending notes or about contract time, simply length of it was staying he was Now, “Q. again in 1938 extended taking there care of the taxes. payments on all the for an *17 money accept go ahead agreeing outside of that he could
consented I would still taxes, I living continuing agreement, there take care of the that and but wasn’t a any didn’t to him simply that for that time. make definite statement was pay about go could still ahead and he % ‡ :(C jfc sji # money, except specific at the times he wrote Now, couple years on of “Q. the first me and I write that at would back that ’41, during to this, referring and to ’37 specific money. accept time I would hap- actually what periods years, those of agreeing As the contract long as that write year Miller would pened, each Mr. indefinitely, would keep did that I never you you and he was a hard having to- tell after or first two. you extend contract? would time and would call it extend- you “Q. don’t you ever, any time, A. I know Did offer contract, living let him on ing just I No, to Miller’s return Mr. notes? A. I n didn’t. tough time a man there. I what a knew country feel having, I didn’t
in that and “Q. you upon Did ever a demand way, after crowding but him in like him, you received after those notes if year, you could the first I don’t know possession, payment of them? told just it the contract. extending call No., sir, never did. keep the taxes up him to live there and so ever, “Q. you up Have to this time ever on me. it wouldn’t come back payment for the demand the notes you up pay “Q. keep To the taxes not, the contract? A. I have I have putting it A. That’s when he could? ready, told him from time he was time broadly, pay when he saying me too little pay, accept nearly ready his I would accepted money have his I would could. money, payment, far as demanding but as deal years those if some better during not. have up. hadn’t come “Q. payment You have never demanded ' general “Q. understand- And had a day? up of those notes A. No. if he performed that Mr. Miller ing with ****** part pertaining of the contract that taxes, “Q. you place sort do would the date that payment How paying sir, that contract? A. withdrew Well the matter of let Well, exactly few bank notified me a months extended? A. after the along it in or ’47, January there it was -in H* sometime, of 1947. the middle [*] and I H< H« *18 winter, H* that the here mineral any appellant think a one right, family. ^4 considered the contract for- of a Sec. would be there should be * * * ” plenty proof oil alone, feited. Standing the the letter would “Q. payments extended But had ’41, appear quite appellant’s inconsistent with year from 1937 to those notes each inclusive, year year? prior contention. But in view of and sub- you, each hadn’t events, sequent the only merely first or two there letter indicates No, appellant extending the that somewhat confused specific mention rights. Noticeably, yery to his in the next notes. letter, 19, 1948, May discussing dated while intention-on each “Q. And wasn’t “ * * * appellant problem, says, a tax subsequent years, to take same those they did»f we have a contract.” know No, previously taken? A. action had contract chal- existence of the is not was, except say it at the wouldn’t lenged by response Nelms in His thereto specifically Mr. Miller. said so to 1, thereafter. These letters were June H? (cid:127) H* H* Hi H' H* some months Nelms had written 15 after contract, withdrawn deed and notes “Q. never Mr. You advised Miller that appellant’s from bank without knowl- notes -and the you had taken his other in- and, edge during time, he had failed placed bank, in the bank from the struments appellant withdrawal, inform of such *” * * No, didn’t. you? A. did notes, say or one him word re- tender appears from the From all record forfeiture, except possibly his garding last appellee convinced we appellant offered letter, had con- after required of a vendor thing to do the failed the deal. súmate only He circumstances. such not under stipu make The mere failure but on the forfeiture to declare failed contract does not appel- payments lated to deal other continued hand Jaé acquiesced At Black delay, of it. 3 accepted
void or work forfeiture overdue Cancellation, section payments objection, on Rescission without cannot —he “Where a con 569, stated: thereafter rule forfeit we find cancel contract estate reserves sale of real tract for the without giving first distinct sufficient declare the con notice to the seller of his intention to insist on strict * * * purchaser shall make compliance case the tract void with its terms. price, fail payment default in “ * * * to state rule in its broad- payments stipulated does ure to make terms, est where parties both the to a con- void or ef make the contract of itself tract of sale have taken considerable lati- it, forfeiture, vendor must fect a tude in its performance, without manifest- intention of his election give notice ing any intention to hold each other to a * * also, contract, See forfeit the performance, and literal strict neither party 178; 96, 196 P. Milligan, N.M. 27 Park v. abruptly can rescind noncompliance 230, Newman, 220 P.2d N.M. Rudy v. without warning fair of an intention to 39, Krasnow, 54 N.M. 489; v. Petrakis upon insist compliance a literal with the 343, Aldrich, 238 Mich. 220; Pias v. P.2d ” * ** contract in .the future. 80; of Sevier Bank v. State 213 N.W. Co., stated, It 80 Utah Plaster American Cement A.L.R. that: 1065; indulgence “Where Hughes v. Burton Lum has P.2d been extended un- 1022; long til Tfex.Civ.App., 188 Corp., ber S.W. after installments of purchase *19 Hall, money due, have v. Fla. become Farms Co. 84 South Florida a forfeiture cannot upon be asserted the 233, mere 687. 93 So. basis of the con- nonpayment.” tinued acquiesce vendor cannot in de A “ ** The author page continues at 388: rescind, lay giving and then without notice to entitle vendor to assert a forfeiture of 'his intention to insist strict com for payment, default his conduct principle pliance. ref- is announced erence forfeiture, to such must Cancellation, 3 on Rescission and Black been positive, unequivocal, section 570: inconsistent with the continuance of the contract.” “ ** * right where a of forfeiture See, once accrued has been or suspended, waived Suburban Homes v. North, Co. 50 where there has been forbearance 108, 2; or con- Mont. P. Ann.Cas. 1917C,81; 145 previous defaults, as, donation of 206, where Delaplaine, Hall v. 5 Wis. 68 — Am.Dec. payments party 57; the to whom the are to be Am.Jur., 55 Vendor and Purchaser, made granted has extensions of time, 623, 625, or sections 627. testimony,
Also, part, is Cornell’s forfeiture is as follows: or, by continuing negotiations, waived “Q. Did he tell he had a contract time has extension of indefinite where an property? No, on the A. he didn’t Walters, N. Kingston v. granted. been detail, into very that much vague. he was Haven, 594; De 59, v. Gustason 113 P. M. “Q. whether And involved to trying also, 55 See P.2d 1095. Kan. ? money pay up to his own contract Purchaser, sections Am.Jur., Vendor A. understood getting involved' estoppel Clearly, the doctrine 630. money buy. applicable here. “Q. Was that based on understand- question whether brings us to This ? ing A. What he told me. purchasers appellees are innocent
cross “Q. possession Did he tell he inwas Appellee, without notice. for value and place? living of the he was knew Cornell, meeting caused a Dudley on it. held rith between Miller his Miller’s claims. when testified what he was them Cornell duty to make interests, rights under nature testimony community. There is inquiry inquiry was made of him. Cornell vague and refused asked possession, in substance By the same property any, he duty of full disclosure and Cornell when character of go into him as mysterious to do so. had in contract with Nelms. just token, it was Miller’s owners course, imposed seeking some to the Miller what the land a conflict of his of the Lind- to ascertain detail Miller, was some- transpired nature of former’s claims latter about when upon what make a deal it, what Mr. Miller’s interest on the place was, be? A. see what Nelms for existence. tenant, “Q. “Q. “Q. that [*] [*] living is that He never did tell And You didn’t did [*] [*] there, and I didn’t know it was right? he?. A. his when rights first it. [*] [*] terms, examine the A. That’s correct. he was dealing No, # # v he went to see Mr. he said that he was trying to parties ‡ [*] [*] he was contract found still in [*] [*] [*] just out for other hand, says he informed Cornell [******] you also know the land “Q. Didn’t purchase a contract he had *20 to Mr. ? taxes Miller been assessed gave had full information place and him Yes, showed on the record. A.
about the contract.
156
“Q.
you obtained? Miller on
On
certificate
the decisive issue thus raised
testimony
their
A. That’s true.
as to whether Cornell
made adequate inquiry in an effort
“Q.
So at the
obtained
ascertain the rights claimed by Miller
gas
that the land
oil and
lease
knew
contract,
under the
request
nor do we find a
con-
had been
to Mr. Miller
assessed
for such finding by
appellees.
cross
Even
tinuously
you were
to the date
since ’37
though the contract
cancelled,
were not
assessed? A.
dealing
was still so
by Nelms,
claimed
if Cornell
un
tried
right.
That’s
availingly to learn from Miller what his
pos-
“Q.
Mr. Miller was
You knew
rights were then it could not be said
did
he
right.
That’s
session? A.
pursue
the inquiry with sufficient dili
gence.
negotiated
Mr. Miller
“Q And
The burden
appellees
was on cross
Yes.
lease? A.
obtain the
show
inquiry
sufficient
was made. But
the findings being silent on the issue
from Mr.
“Q.
And
ascertained
whether Cornell made adequate inquiry
contract?
it under
he had held
Nelms that
Miller,
presume
court will
an adverse
That’s true.
A.
finding against
appellees.
cross
Byerts v.
“Q.
didn’t see the contract
And
to Schmidt, 25
219,
N.M.
Ringle
157 “ * * * purchase price And says: Possession and interest. it is author The of so notice to constructive ordered. not amount does rights of the nature and extent of puts pur-
person possession, LUJAN, J., McGHEE C. and and rights. inquiry such He upon as to chaser COORS, JJ., concur. inquiry with dili- pursue the bound to rights what those and to ascertain
gence, SADLER, J., dissenting. * * * negli- who purchaser A are. inquire intentionally or fails gently SADLER, (dissenting). Justice or as to the title possession, the fact of my opinion In the contract under which possession, is person in interests defendant, Miller, lapsed claims had become title or interest notice such with affected following ** *” and abandoned continuous de- possessor actually has. by faults him thereunder and was so treated It follows that Cornell had actual parties, himself, by Miller, all acquiescing appellees and that notice cross had con view that it was dead. It had appellant’s possession notice of structive remained in years that state several ownership. claim of Such and notice was dealing present before the out put appellees inquiry sufficient controversy place. say arises took To inquiry, all facts which pursued least, way this is the the trial court viewed proper diligence, might Taylor with reveal. matter, having accordingly, found Co., 606, v. Hanchett Oil N.M. 27 P.2d way I see no in which can with pro- we 59; Barton, Sawyer 479, v. 55 N.M. 236 priety findings, overturn being sup- those 77; Templeman, P.2d Mainwarring v. by ported substantial evidence. 205; Strong, Tex. v. Strong 128 Tex. am familiar with the rule that forfei- 346; Pomeroy’s Equity 98 S.W.2d Jur. tures are not slight favored and' that Ed., 615, pp. 4th section 1167. circumstances will ordinarily be seized upon expressed to avoid The them. But when views renders further the two unnecessary. parties to a contract expressly discussion either by trial court’s strong implications arising findings set on conduct, are cancelled and aside. The longer judgment reversed, agree that a contract will be no exists directions lapsed terminated, has court to enter an order rules trial men- operate reinstating upon tioned cease to the case its no longer docket and might appellant’s The trial court judgment title, control. quieting enter found majority entry subject appellee do and have directed to the lien Nelms for as judgment they order but it declined so, viewing differently. to do the facts In
my opinion we are bound findings.
Accordingly,
I dissent.
TRANSCONTINENTAL Inc. BUS
v. STATE CORP. COMMISSION et al.
No. 5367.
Supreme Court of New Mexico.
Feb. 1952.
Rehearing Denied March 1952. notes purchasers value their bona fide at any time. And I will stand half of in the land in rights claimed interests cost of an abstract which should»?be much appellant’s claim without notice of suit since you are the original homesteader. to said lands.” Then have one note to come due in six an extensive review of the evi- We deem months for complete $150 which would explanation necessary of our dence to payment 250 down & the next note year correspondence Much opinion. leading from now & the rest each years. for 8 the contract and concerning making make That payed $500 first year & I parties subsequent conduct of ¡Wieve I pay after that much & have done following evidence. The facts admitted some improving & cleared as much as a 100 undisputed: of land I can borrow 2000 of this federal “Lindrith, New Mex. money long on terms pay& out if March. 27-37 so possibly disired. (over) pay you the “Mr. Nelms before 6 months $150 as soon I get my crop in I can take my tractor & yesterday. sage clear letter Looked your “Received out & make that much but the today some place went trouble is over them sage want cleared much wants How line it done the fences. around until? fall. If proposition yours? is fence please should suit let me know at once as it place layes 5 forties “I understand getting is to where we can start farming. north & south one & forties &east west I have Lindrith Cordells rented outside. forty the north west there isn’t much farm land on it. As ever something like 150 acres think “I there a friend. be cleared. sage that could “(Sgd.) A. D. Miller. going I am best “Now “Grand Colo. Junction
Notes
the time of notes year, is that correct? A. additional “Q. general understanding With specified say year, but I did that I position up con- got can’t if he take tract, At those times I .say could ahead and live there an- he could do ? A. he
notes thing get expiration They the last that, same date note. trying say, immediately, it As I I would didn’t do it aren’t ? was a again, few time, that, along accepted payments his months after that the contract had him it if lant in such manner as cause appreciate would they expired would intention. out of to believe that had no such it, it he get get come their perhaps, after distinctly that was in I did come files, fully and I they asked year or didn’t papers, the winter more do me to come than immediately, and I recall year, ter of here for the Appellees April 20, reads, years “Since now I should have a 1948, particularly I feel that rely strongly I have starved in paying on the let- part along part