Retsch v. Renehan
16 N.M. 541
N.M.
1911
Check Treatment

OPINION OF THE COURT.

MECHEM, J.

1 2 3 On December, 1895, in a cause in the District Court of Santa Fe county, A. Z. Monell, obtained judgment against Louis Haffner in the sum of $100.00 and costs of suit, and thereafter, under an execution, issued by virtue of said judgment, the Sheriff of Santa Fe county sold, and defendant Renehan bought in and received a deed from the said sheriff, to certain real estate, the property of the -said Iíafíner. Renehan was the attorney of record'of Monell, the judgment creditor. The court below found that, “The total for principal indebtedness, interest, costs of suit, and costs of sale should not have exceeded $174.00,” but that “the deputy sheriff making the sale announced that $565.00 bid, the amount of judgment and costs, would be necessary before there would be any sale,” which sum Renehan bid and the real estate was struck off and sold to him- the court further .found that of this sum, $375 was for custodian’s or caretaker’s fees at the rate of $185.00 per month. The statute makes ho provision for fees to a sheriff for the care and custody of real estate under levy by execution. The charge for such fees in this case was illegal, improper, and extortionate. Renehan is charged with notice of the illegal and fraudulent conduct of the officer making the sale and there is no room for. any argument that a court of equity will not set such a sale aside.

4 2. On January 23, 1900, Renehan,' by quit claim deed, conveyed said real estate to the defendant Fogarty, who sets up the defense of a bona fide purchaser for value and without notice. The consideration expressed in the quit claim deed was that Fogarty “has cancelled and confesses as paid a certain promissory note” of Renehan’s for $250.00.and also a debt of $180.00. Renehan testified that the note was for $250:00 with interest from some time in 189.0 or 1891 at 6%. The court found that the consideration of the deed was for antecedent debts and, therefore, Fogarty was not a purchaser for a valuable consideration. The question here raised is discussed in 2 Pomeroy Eq. Jur., see. 749, as follows: “Wliether the complete satisfaction and discharge as the definite forbearance of an antecedent debt without surrender or cancellation of any written security by the creditor, will be a valuable consideration, is a question to which the courts of different states have given conflicting answers, but the affirmative seems to be supported by the numerical weight of authority. Some legal rules ought to be settled in accordance with the results of experience and dictates of policy, rather than by compliance with the deductions of a strict logic. To hold that a conveyance is security for an antecedent debt is made without, but that one in satisfaction of such debt is made with a valuable consideration, when the fact of satisfaction is not evidenced by any act of the creditor,- but 'depends upon mere verbal testimony, is opening the door wide for the easy admission of fraud. It leaves the rights of third persons to depend upon the coloring given to a part transacted by the verbal testimony of witnesses, after the event has disclosed to the creditor the form and nature in which it is for his interest to picture the transaction. The rule which renders it so easy for an interested party to defeat the rights -of others is clearly unpolitic.” With the view thus expressed by so eminent an authority and supported, it seems to us, by sound reason, we are in full accord and, therefore, hold that there being an entire absence .of any evidence showing a surrender or cancellation of any written security held bjr the creditor, Fogarty did not become a purchaser for a valuable consideration.

3. It might be also suggested that there is nothing in the testimony to show that the debt due Fogarty was enforceable.

5 4. Although the defendants did not in their pleadings rely upon the defense of laches, it is argued in their brief, and while it is not clear that they are entitled to have that question considered here, yet we will deal with it. In discussing the doctrine of laches," the court, in Penn. Mutual Life Insurance Co. v. Austin, 168 U. S. 685, says: “The reason upon which the rule is based is not alone the lapse of time during which the neglect to enforce the right has existed, but the changes of condition which have arisen during the period in which there has been neglect. In other words, where a court of equity finds that the position of the parties has so changed that equitable relief can not be afforded without doing injustice, or that intervening rights of third persons may be destroyed or seriously impaired, it will not exert its equitable powers in order to save one from the consequences of his own neglect.” See, also, Patterson v. Hewitt, 11 N M. 1. We have been unable to find, and onr attention is not directed by counsel for defendants to anything in the record for which the trial court could have found that prior to January 20, 1901, the position of the parties had so changed that equitable relief could not have been afforded without doing injustice.

6 Further, Mrs. Iiaffner having been in possession of the land in dispute, laches will not be imputed to her no matter how long her delay. 5 Pomeroy Eq. Jur., sec. 33. Numerous other points are discussed in the briefs which we do not deem it necessary to discuss in disposing of this appeal. Finding that the learned trial judge committed no error, the judgment in this cause is in all things affirmed.

Pope, C. J. did not participate in this decision.