The controversy in this case relates to a tract of land within what is known as the Maxwell land grant, to a portion of which, about 1000 acres, described in the deed from Maxwell and wife to Dawson, it is admitted the defendant has a good title. Defendant, however, claims title to about 20,000 acres lying outside of the boundaries of the tract admitted to belong to him, which is the property in dispute. The case is before us upon certain errors assigned to the admission of testimony, and to the charge of the court.
(1) The third assignment of error is taken to the admission of the testimony of Dawson as to the parol statements of Maulding and Curtis touching their contract for the purchase of the land, which included that in controversy. The court below held that there was no error in the admission of this testimony, because, under the civil law, land could be conveyed by parol, accompanied by delivery of possession; and that it was immaterial whether the statements of Maulding and Curtis were properly admitted or not, because Dawson had testified that he had conversations with Maxwell, the party from whom they claimed to have purchased, and that Maxwell pointed out the boundaries of the land he would receive under his agreement with Maulding, Miller, and Curtis, who were then in possession, and so recognized by Maxwell under his sale to them.
It will be observed in this connection, however, that the court relies largely upon the extract from the Recopilacion which appears to have embodied a system of laws applicable to all the Spanish possessions in the Indies. The law referred to seems to have been a mere fiscal regulation, designed for the purpose of securing to the government its alcabalá, or excise tax upon the transfer of land, rather than for the protection
It is also said, in the useful and exhaustive work of Mr. Hall upon Mexican Law, page 489, that there was no statute of frauds in Spain or Mexico, and that a verbal sale of real estate was valid. He also speaks of the public writing, (escritura publica,) stated by earlier authors to be essential to the sale of real estate, as being a mere fiscal law, created for the purpose of collecting the alcabalá, or tax on sales, and that the law did not declare that sales made otherwise should be null and void. "Sales of real estate or contracts in relation thereto, made in the territory ceded by Mexico to the United States, and subsequent to the concession, could not possibly have been affected by such a fiscal law. There was no law in force in the United States authorizing the collection of an alcabalá, and no officer had power to collect such an impost. Such a fiscal law could not have been carried into execution in said Territory." See also Devall v. Choppin, 15 Louisiana, 566; Gonzales v. Sanchez, 4 Martin, N.S. 657. Important changes were, however, made in the law of Mexico subsequent to the treaty of Guadalupe Hidalgo, and by the Civil Code of 1871 of the Federal District and the Territory of Lower California, which also seems to have been adopted by many of the Mexican States, it was provided, (art. 832,) that "the division of immovable property is void, if it is not made by
In a subsequent chapter a system of public registration is provided, somewhat similar to our own. These provisions are also carried into the Civil Code of December 14, 1883.
It is unnecessary, however, for the purpose of this case, to express an opinion whether under the civil law a transfer of land was valid without a written instrument, since we are of the opinion that the civil law in this particular had been supplanted by territorial enactments.
While no statute of frauds appears to have been adopted in New Mexico as early as 1868, the Compiled Laws of 1865, art. 18, c. 44, required all conveyances of real estate to be subscribed by the person transferring his title or interest, (sec. 4,) and to be acknowledged and certified by a public officer (sec. 5). Although there is nothing in this chapter saying in so many words that no transfer can be made without an instrument in writing, the careful provisions made for the execution and acknowledgment of conveyances of real estate indicate very clearly that written instruments were considered essential.
But, however this may be, and giving full force and effect to all that is claimed for the civil law in this particular, it is very clear that there was no such identification of the land, delimitation of the boundaries, and delivery of possession as were necessary, under the most liberal construction of the civil law, to convey a title. The testimony as to any contract which Maulding and Curtis may have had with Maxwell with regard to the large "block of land," of which a portion claimed by the defendant was a part, was not only hearsay,
The court below also held that whether the statements of Maulding, Miller, and Curtis, as to their contract with Maxwell, were or were not properly admitted in evidence, was immaterial, from the fact that defendant Dawson further testified that he had conversations with Maxwell, the party from whom they claimed to have purchased, and that Maxwell pointed out the boundaries of the land he would receive under his agreement with Maulding, Miller, and Curtis, who were then in possession. All this conversation amounted to was that Dawson met Maxwell in June, 1868, at a stage station, some four miles from the land in question; that Maxwell pointed out to him the boundaries of the land he would receive
As the location of the dam mentioned in this deed as the upper boundary of the tract conveyed, is admitted, and the piñon tree, which marked its lower boundary "to the right of a ridge, near a wash," was admitted by Dawson to have been seen by him when he first went there, and was on the southwest side of the Vermejo River, near the travelled road up and down the river, and only a little over a hundred yards from the bank of the river, at the southwest end of the stone fence built by the defendant to mark his lower boundary line, there was, and could have been, no uncertainty as to the upper and lower boundaries of his tract. The "pile of rocks, on a knoll or elevation, with some bushes near thereto," to which the line ran from the dam, Dawson swears he never found, and it must be admitted that the side lines of the tract are very vague, and justify the remark made by Morley, the surveyor employed by the plaintiff, when he was shown the deed from Maxwell and wife to Dawson, that there was not a man in the world who could take the deed and survey the land. From the fact, however, that the line was run from a pile of rocks on a knoll or elevation, which could not have been far
While defendant may have gained a title by adverse possession for ten years, it is difficult to believe that when he went into possession he claimed anything more than the tract covered by the deed from Maxwell, though, having command of the water for a certain distance, he may have treated this as giving him the control of the grazing privileges over a much larger extent of territory.
Under no theory of the case, however, were the loose talks which the defendant had with Miller, Maulding, and Curtis, or with Maxwell, admissible either to fix the boundaries of the deed, or to throw light upon the character and extent of his alleged adverse possession. They were calculated to prejudice the plaintiff's case and to leave an impression upon the jury that defendant's claim of adverse possession was justified by a contract with Maulding, Miller, and Curtis of which there was no legal evidence. The admission of such testimony would create a most dangerous precedent and open up possibilities of fraud that might operate to the unsettlement of great numbers of titles.
It is insisted, however, that this evidence was admissible to supplement the vague and uncertain language of the deed; that it was essential for defendant to explain why he did not claim the Van Bremmer Cañon, and why he did claim the land in controversy; that he could only do this by relating his conversations with Curtis and Maulding in regard to their contract with Maxwell, and that the question at issue was not the actual contents of this contract, but the good faith of Dawson's claim to the land in controversy. The question, however, was one of actuality and continuity of possession rather than of good faith; and even if the good faith of the defendant had been material to this inquiry, it is difficult to see how loose conversations with parties, who, whatever they claimed, were not shown to have had a contract with Maxwell, tended to throw any light upon this question. The difficulty both with this testimony and with that respecting the conversations with Maxwell is that it was likely to lead the jury to believe that
(2) There was no error in admitting testimony to the effect that the land claimed by Dawson was generally reputed to belong to him. Claiming as he did by open, notorious, and adverse possession of these lands for a period sufficient under the statutes of New Mexico to give him a good title, it was competent to prove that it was generally understood in the neighborhood, not only that he pastured his cattle upon these lands, but that he did so under a claim of ownership, and that his claim and the character of his possession were such that he was generally reputed to be the owner. While this testimony would be irrelevant in support of a paper title, it had an important bearing upon the notoriety of his possession. Sparrow v. Hovey, 44 Michigan, 63, 64. It may be that, as the tract upon which Dawson lived was admitted to be his property, and the question was one of boundaries or extent of ownership, the testimony may not have been of much value, but we cannot say it was inadmissible. It was a question for the jury to say not only whether his adverse possession, but whether this repute of ownership extended beyond the property included in his deed from Maxwell.
(3) Plaintiff has no just reason to complain of the instruction of the court that the documents introduced by it were sufficient to vest in it the title to the land in controversy, unless they found from the evidence that the plaintiff had failed to prove that the land in controversy, or some portion thereof, was not the whole or part of the 15,000 acres of land excepted in the conveyances under which plaintiff claimed title; or in the further instruction that the burden of proof was on the plaintiff to show that it had the legal title to, and the right of possession of, all the lands in controversy; and, unless they found from the evidence that the lands in controversy were included in and not excepted from the deeds of conveyance under which plaintiff claimed title, plaintiff could not recover.
Under a certain deed from Maxwell and wife to the Maxwell Land Grant and Railway Company, and in all the subsequent
An exception in a grant is said to withdraw from its operation some part or parcel of the thing granted, which, but for the exception, would have passed to the grantee under the general description. The effect in such cases in respect to the thing excepted is as though it had never been included in the deed. If, for example, a person should convey to another a block of land, excepting therefrom a certain lot previously conveyed, to sustain ejectment for any particular lot, it would be necessary for the plaintiff to show that it was not the lot which had been previously conveyed. There is a general rule, applicable both to conveyances and statutes, that where there is an exception in the general granting or enacting clause, the party relying upon such general clause must in pleading state the general clause, together with the exception, and must also show by the testimony that he is not within the exception. Thus in United States v. Cook, 17 Wall. 168, it was held that if the ingredients of a criminal offence could not be accurately described, if the exception in the statute were omitted, an indictment founded upon the statute must allege enough to show that the accused was not within the exception; but that, if the
But the exact question raised by the exception in this case was considered by this court in Hawkins v. Barney's Lessee, 5 Pet. 457, where a patent was issue for 50,000 acres of land, and by subsequent conveyance the patentee sold small parts of said land, and particularly one parcel of 11,000 acres, within the bounds of the original survey and it was held, that to sustain an action of ejectment it was necessary for the plaintiff to show that the land he sought to recover was without the limits of the tract shown to have been conveyed away by himself. The court quoted with apparent approval the case of Taylor v. Taylor, 3 A.K. Marsh. 18, 20, in which the Supreme Court of Kentucky held that a plaintiff in ejectment, claiming under a deed conveying the balance of a tract of 14,000 acres of land, must show what that balance was, and where situated, and that it included the land in contest. Also the case of Madison's Heirs v. Owens, 6 Littell, 281, where, to recover in ejectment, it was held to be necessary for the patentee to show that the defendant was not within the bounds of certain claims excluded from the language of his patent. See also
These cases are precisely in point, and show that the court was guilty of no error prejudicial to the plaintiff.
Defendant, however, claims that, as the plaintiff made no effort to prove himself without the exception, the judgment of the court ought, irrespective of every other consideration, to be affirmed. It is true that the court may have erred in not granting the motion of the defendant made at the close of the plaintiff's case to direct a verdict for him upon that ground, as there does not seem to have been any testimony offered by the plaintiff, in making his original case, to show that the land in controversy was not within the exception; but the defendant is in no condition now to take advantage of it, as the instruction actually given was given upon the request of the defendant himself. While the plaintiff has no right to complain of this instruction, it does not necessarily follow that defendant is entitled to an affirmance of the judgment because the charge of the court was not sufficiently favorable to him in that particular, when such charge was made upon his own request. In putting in its rebutting testimony plaintiff did put in evidence the deeds of Maxwell and wife to Maulding and Curtis, but they were not offered for the purpose of proving itself without the exception, but for the purpose of contradicting the testimony of defendant to his conversations with Maulding and Curtis, and it is too late for it now to claim that they were offered for the purpose of proving itself without the exception.
(4) Plaintiff also complained of the instruction of the court upon the subject of the statute of limitation, namely, that if the plaintiff permitted defendant to take possession of the tract, claiming all of it as his own, and to continue such possession adversely under such claim of title for an uninterrupted period of ten years or more, such possession would ripen into a right and title in the defendant, and forever afterwards prevent the plaintiff from taking possession of the property. We think, however, the instruction complained of was justified by the language of the statute, which provides (Comp. Laws New
But for the error of the court specified in the third assignment, in admitting the testimony of the defendant as to the statements of Miller and Curtis, the judgment of the court below must be
Reversed, and the case remanded with instructions to set aside the verdict and grant a new trial.