228 P. 228 | N.M. | 1924
[1] 1. Appellant contends that he affirmatively established a legal title under the following facts proven by him, viz.: That more than 30 years prior to the institution of this suit, Venceslao Chaves fenced the land in question, claiming to own the same; that the trustees of the Atrisco grant failed to take any legal steps to question such action on Chaves' part; that later, and for a valuable consideration, Chaves executed a mortgage upan said land to Pedro Perea, and that, subsequent thereto, Chaves and his wife conveyed the same by deed to Perea; that thereafter Perea conveyed it by deed to the appellant; that this deed was lost, and many years thereafter Perea's heirs executed a substitute or lieu deed conveying the same to appellant, in which the loss of the original was full recited; that during all of said times, and up to the time appellees dispossessed him, appellant and his predecessors in interest had possession of the land in question. Under these facts, it is contended that he proved a good title in himself. These grounds were incorporated in appellant's motion for a directed verdict. That there was an issue of fact with reference to the kind, character, and duration, as well as the existence of possession by the appellant and his predecessors in interest, is plainly to be seen from the statement of facts appearing in the opinion upon the former appeal, and it is admitted by counsel for both parties in their respective *141
briefs, that the evidence upon this question on the subsequent trial was not materially different from that given on the previous one. This court expressly held, in such former opinion, that an issue of fact was presented with reference to the possession of the land, and that holding is the law of the case upon this appeal, and is binding upon this court, as well as the litigants. Davisson v. Citizens' National Bank,
[2] 2. Appellant strongly urges that, at the time the common lands located within the Atrisco grant were conveyed to the corporation, he owned and was in possession of the land involved here; that it being privately owned land, the corporation acquired the legal title thereto as a naked trustee only, and that it held such legal title for his use and benefit as the actual owner. He relies upon Williams v. Lusk et ux.,
[3] 3. Appellant further asserts that, aside from his legal title, he was entitled to recover upon his prior possession alone. He asserts in this connection that the appellees were naked trespassers, and that, in ejectment cases where no legal title is shown in either party, the one showing prior possession will be held to have the better right, and hence, entitled to recover. With this statement of abstract law we are in accord; but the difficulty with appellant's position is its application to this case. As we have previously seen, the trial court found against him upon his issue of prior possession, and, for the reasons we have previously suggested, he is bound by that finding. For this reason, he is cut off from recovering upon this theory.
[4] 4. It is next urged that the court erred in admitting in evidence the deeds from the trustees of the Atrisco grant to certain of the appellees. From what we have said, the trial of this case finally resolved itself into one before the court without a jury. In such cases, the erroneous admission of evidence is not reversible error, unless it affirmatively appears that the *143
court took such evidence into consideration in deciding the case. Radcliffe v. Chaves,
[5] 5. Appellant's counsel asked several witnesses, who had actual possession of the land at specific times, explaining that what he meant by possession was "possessio pedis" — having his feet on the ground. To each of these questions, the trial court sustained an objection upon the theory that the answer involved a mixed question of law and fact; that it was a question for the jury; and that to admit such evidence would invade the province of the jury. Obviously, the court was correct. Possession of the land was an important, if not the controlling, fact in the case, and was the principal question to be decided by the jury. In such a case, it is certainly not one for witnesses to express their opinion upon, but instead they should testify to the various facts from which the jury may reach its conclusion. To permit witnesses to testify is simply to allow them to invade the province of the jury. They may testify to any independent fact, which will throw light upon the question of possession, such as who built fences upon the land, cultivated it, erected other improvements, grazed their stock thereon, and other kindred facts, from which the jury might decide who had possession. Had possession not been one of the direct issues in the case for final determination by the jury, but merely an incidental one, perhaps the objection would not have been tenable, but in this kind of a case, it is for the jury and not witnesses to say who had possession during the material times. *144
From what we have said, it follows that the judgment should be affirmed, and it is so ordered.
PARKER, C.J., and BOTTS, J., concur.