Crary v. Field

McFIE, J. This case is now before the court for the second time. The former trial in the court below resulted in a judgment in favor of the plaintiffs, appellees in this case, and the defendant, Hattie E. Crary, sued out a writ of error to this court. This court heard the case upon its merits, as shown by the testimony and briefs of counsel, and on the second day of October, 1897, filed an opinion reversing and remanding the cause. 50 Pac. Rep. 342. Upon the second trial in the court below, the testimony taken at the former trial was admitted as evidence, by agreement, and the appellees here introduced but one additional witness, Nicolas Lucero; and the court, who tried the case without a, jury, rendered judgment for the appellees in this court. Hattie E. Crary, the appellant, appealed from this decision, brought the record here, and upon the hearing it was agreed that the record and briefs used in this court on the former hearing should be made a part of the record at the present hearing. Parana appeal: law of the case. There is one point in this case upon which counsel seem to agree, and that is, that the former decision of this court, if upon substantially the same evidence so far as it states the law, is the law of this case> and wil1 not be reviewed by the court at this hearing. The appellees admit this to be the general rule of law, but contend that the evidence in this record is substantially different, and that where such is the case, the rule of law above stated, is not applicable. The rule of law above referred to (and which seems, to be the settled law) is fairly stated in the case of Phelan v. San Francisco, 20 Cal. 45, as follows: “A previous ruling by the Appellate Court upon a point distinctly made may be only authority in other cases, to be follow^’ and affirmed, or to be modified or overruled according to its intrinsic merits, but in the case in which it is made it is more than authority; it is a final adjudication, from the consequence of which the court can not depart, nor the parties relieve themselves.” The Supreme Court of Vermont, in the case of Stacy v. Railroad Company, 32 Vt. 552, in stating this rule and giving some of the reasons for adhering to it, says: “The rule has long been established in this State, often declared from the bench, and we believe uniformly adhered to, that in the same case this court will not revise nor reverse their former decisions. If all questions that have ever been determined by this court are to be regarded as still open for discussion and revision in the same cause, there would be no end to their litigation until the ability of the parties or the ingenuity of their counsel was exhausted.” Briefly stated, the facts are that Clara Candelaria was the wife of Miguel Montano, in 1862, when Montano acquired title by deed, and thus brought into the marriage community the real estate which is the subject of this suit. Clara died in April, 1868, leaving five children the issue of such marriage, and Miguel Montano, her surviving husband. Miguel Montano was appointed, and on the twenty-sixth day of April, 1868, qualified, as administrator of the estate of his deceased wife. The record is silent as to any further proceedings by the administrator. Montano remained in possession of the community property without objection, continuously, until the twenty-seventh day of January, 1882, when he conveyed a part of the property to one C. W. Lewis, and on the second day of October, 1883, he sold another portion of the property to Casiana Montano ■de Sanchez, who was one of the children of Miguel Mon-tano and wife. Casiana Montano de Sanchez became the wife of Nicholas J. Sanchez, and in 1891, they brought the original suit against the appellant and. her husband, who succeeded to the Lewis title, to recover possession of an interest claimed by her (Casiana) as an heir to her mother’s estate. Casiana and her husband both died'while the original suit was pending, leaving a minor child, James Sanchez, as their sole survivor. Upon suggestion of the death of the plaintiffs being made, the suit was revived in the name of Neill B. Field, executor of the estate of Casiana, and an order was made authorizing the executor to prosecute the suit as guardian and next friend of James Sanchez. The above facts are equally applicable to the present, as well as the former case, and upon these facts this court, in its former decision, declared the facts and law of the case to be as follows: “It appears that Miguel Montano qualified as administrator of the estate of his wife on the twenty-sixth day of April, 1868, and that he remained in possession of the community property without interruption or objection continuously from that date until January 27, 1882, when he conveyed a part of the property to one C. W. Lewis, and that on the second day of October, 1883, he parted with another portion of the property by deed to Casiana Montano de Sanchez, but it is not shown in either case in which capacity he was such grantor, nor does it seem material whether he acted as survivor or administrator, as the presumption must be that he was realizing for the purpose of discharging the community debts. If he acted as survivor, his right under the civil law was indisputable; and if as administrator, he was duly authorized, and his transfer of title was valid. That it is not shown of what the community property consisted, that it is not shown that the portion of it sold was for the discharge of the community debts, cannot affect or destroy the rights of the bona fide purchaser for value. If Montano' were abusing his trust as survivor, he should have been restrained by those whom he was wronging; and, if he were exceeding his authority as personal representative, redress should have been sought upon his bond. That Casiana Montano de Sanchez recognized the right of her father to sell the community property is manifest; that she became purchaser of a part of it from him is not less true; and that this action of hers, and the payment of purchase money by her, indicate her approval both of the propriety and power of his conduct, in connection with her sisters, of converting a part of the same property into cash, may be logically claimed; and that she was cognizant that the proceeds were rightly used, either in the payment of the debts of the community, or in the distribution among the parties entitled, may be fairly inferred from her failure for many years to assert any antagonistic right in the premises.” After quoting from numerous authorities to sustain the position announced, the-court concludes as follows: “That the Spanish law, as hereinbefore announced, as to the property rights of married persons, prevailed in i8'68 in the Territory of New Mexico, is our conclusionand that its application to this case is consonant with justice seems palpable. It does not appear that the property involved was not sold for an adequate consideration to pay the community debts. It is not pretended that there was any collusion or fraud in the disposition of it by Montano, or that the contract value was not paid. It does not appear that the proceeds were not properly applied. It is not shown that if Clara Candelaria did not receive a proportion of the said proceeds, even if sold for partition, the community estate has been so administered and distributed that she cannot procure her share of it without damage to an innocent purchaser; nor is it shown that, if she has been deprived of her rights, she cannot secure redress upon the bond of the administrator. The presumptions of the law, not having been repelled, must be applied, and they seem to preclude a reasonable doubt that the title of the plaintiff in error is paramount, and must be sustained.” Crary v. Field, et al. 50 Pac. Rep. 342. °erty?pr(Simp-' tionasto. It is clear, from the record, that upon the second trial of this cause in the lower court, appellees proceeded with the case upon the theory that it-was sufficient for them to show that no community debts existed at the death of Clara, in 1868, and therefore but one additional witness was produced upon the trial, and by & was attempted to be established that there were no such debts. If it were true that it was only necessary for appellees to show this, it is extremely doubtful whether the testimony of the witness, Nicholas Lucero, rises to the dignity of proof, or establishes anything on this point. There is absolutely no certainty about his testimony. He states, for instance, as to how much land was sold for, “I do not remember very well, but it seems to me they paid about $2,500 or $2,000.” As to how much his wife received, he states: “It seems to me about $350,” while the consideration in the deed is $312. Asked whether or not the land was sold to pay debts, he answers: “I believe it was not for the purpose of paying any debts. I think it was a good bargain and he sold the land.” He then swears that he never knew of any debts they owed. On cross-examination, the witness was asked by the court if his father-in-law, Miguel Montano, paid any money on debts which existed at the time his wife died, and to this he answered: “I know nothing of my own knowledge, whether he owed debts or not at that time; he may have owed some; he never told me; he never communicated with me about them.” It is apparent from this testimony that the witness had neither knowledge or information as to whether community debts existed at the death of the wife, or not. At best, it woulcl be but an inference, and it would seem highly improper to unsettle titles of long standing, to real estate, upon testimony of such doubtful character as this. The legal presumption should prevail, where it has the effect of quieting title, over uncertain' and unreliable evidence to unsettle such title, and especially should this be so where the title involved is that of a bona fide purchaser for value, as in this case. But if the testimony offered established the fact that no community debts existed at the death of the wife, it would make no difference in this case, as the former decision of this court has declared the title of appellant not to be subject to attack in this way. This court has- declared, as the law of the case: “That it is not shown of what the community property consisted, that it is not shown that the portion of it sold was for the discharge of the community debts, cannot affect or destroy the rights of the bona fide purchaser for value.” Crary v. Field et al., 50 Pac. Rep. 342. The Court then proceeds to define the remedy of the appellees for any supposed wrong done by the sale of the land by Montano, as follows: “If Montano' were abusing his trust as survivor, he should have been restrained by those whom he was wronging; and, if he were exceeding his authority as personal representative, redress should have been sought upon his bond.” It will-be seen, therefore, that the court, in its. former opinion, sustains the title of appellant, without regard to whether there were community debts or not, and in effect declares that where the title is that of a bona fide purchaser for value, and of many years standing, it is not subject to the attack made upon it, where the parties failed to invoke the legal remedies open to them at the time the supposed injury was done. The additional testimony offered upon the second trial did not substantially change the evidence upon which the first decision in this case was rendered, and therefore the law of the case remains the same. It follows from this conclusion, that the court erred in rendering judgment for the plaintiff in the court below, but should have rendered judgment for the defendant for costs. The judgment of the court below is reversed and the cause dismissed at appellee’s cost. Mills, C. J., and Parker, J., concur.