US SUPREME COURT DECISIONS

It is unnecessary to decide whether under the civil law as in force in New Mexico in 1868, a written instrument was not necessary for the transfer of real estate (about which quaere), as if such a provision had previously existed, it had been supplanted at that time by territorial enactments. Under the most liberal construction of the civil law, a transfer of title to real estate could not be effected without identification of the land, delimitation of the boundaries, and delivery of possession, all of which were wanting in this case.

Certain loose parol statements and certain hearsay evidence are held to be inadmissible in this action of ejectment either to fix the boundaries of the defendant's deed or to show the character and extent of his alleged adverse possession.

When the defendant in an action of ejectment sets up title under adverse possession, it is competent for him to show that it was generally known in the neighborhood that he was in possession of the disputed premises, and was generally regarded as their owner.

When the description in the deed through which a plaintiff in ejectment chanrobles.com-red

Page 151 U. S. 587

claims covers a large estate, as a whole, excepting from the grant such tracts, "parts of said estate," warranted not to exceed a stated number of acres, "which the parties of the first part have heretofore sold and conveyed," the burden of proof is on the plaintiff to show that the land in suit does not come within the exception.

The New Mexico statute of limitations as to real actions, Comp.Laws New Mexico, 1884, § 1881, operates when the period of limitation has expired, if set up and maintained by the defendant in an action of ejectment, to extinguish the right of the plaintiff, and to vest a complete title in the defendant.

This was an action of ejectment brought by the plaintiff in error in the District Court of the Fourth Judicial District of New Mexico to recover of the defendant the possession of a large tract of land within what is known as the Beaubien and Miranda or Maxwell land grant.

The declaration was in the ordinary form of a declaration in ejectment, averring the right of the plaintiff to the possession of the entire Maxwell grant and the unlawful entry of the defendant into that portion thereof situate in the County of Colfax.

Defendant disclaimed as to all the land described in the declaration except a certain tract described in his first additional plea, as follows:

"All the land in the valley or drainage of the Vermejo River, in the County of Colfax, Territory of New Mexico, within the following boundaries: commencing at the dam on said river at the upper end of John B. Dawson's farm; thence running to a high point of rocks on the north side of the Vermejo canyon; thence following along the top of the divide west of Rail Canyon to the head of Saltpeter Canyon; thence down along the top of the divide east of Saltpeter Canyon to a point on a line with John B. Dawson's rock fence; thence following the line of said rock fence across the Vermejo to the top of the divide between the Vermejo and Van Bremmer Canyon; thence following the top of said divide to the head of Coal Canyon, and thence along the top of the divide east of Coal Canyon to a point on said divide nearest the place of beginning; thence to the place of beginning."

He further pleaded adverse possession of these lands for more than to years next before the commencement of the suit, and chanrobles.com-red

Page 151 U. S. 588

that the plaintiff's right to sue for the same accrued more than ten years prior thereto.

Plaintiff deraigned title from the original grantees, through Lucien B. Maxwell, but in the deed from Maxwell and wife to the Maxwell Land Grant and Railway Company of April 30, 1870, there was the following exception:

"Excepting from the operation of this conveyance such tracts of land, part of the said estate, hereby warranted not to exceed in the aggregate fifteen thousand acres, which the parties of the first part have heretofore sold and conveyed by deeds duly recorded on or prior to the 25th day of January, one thousand eight hundred and seventy,"

and all the subsequent deeds under which the plaintiff claimed contained the same exception, though not exactly in the same words.

Upon the conclusion of the plaintiff's case, defendant offered evidence tending to show that he occupied under claim of title, and was generally reputed to own, a large tract of land, described in his plea, the lower line of which was the projection, for a distance of about six miles east and west, of a stone fence built by him across the valley of the Vermejo River, and including within its east and west limits the entire of what was known as the Coal and Rail canyons, and the upper waters of the Lacey, Spring, and Saltpeter Canyons, with the lands and drainage incident thereto. The testimony upon the question of adverse possession, of which there was a large amount, showed that defendant made use of the canyons for the purpose of ranging or pasturing cattle, horses, and hogs, and indicated that from the year 1872 to 1883 he had an average of 125 horses, 200 cattle, and some hogs, which were turned loose in the canyons within the tract. He looked after them from time to time, and, if cattle belonging to other people were there, he turned them out. There was also evidence tending to show that below him, the valley of the Vermejo River was pastured by one Lacey, and below him by one J. W. Curtis, and also by Miller and Maulding. The testimony of Maulding himself tended to show that he and Dawson and two others went into possession of the land under a contract of purchase from Maxwell, and that they were virtually tenants in common under this contract; chanrobles.com-red

Page 151 U. S. 589

that after Maxwell put them into possession, they divided up the entire tract which he undertook to sell them, each one taking exclusive possession of his particular part. There seems to have been what the witness termed "a kind of a bond for a deed," to which Maxwell and Curits were parties, but it was not produced, and testimony of its contents was ruled out.

Defendant himself took the stand, and testified that in 1867, Curtis, Maulding, and Miller came onto the Vermejo and told him "they had a contract" and claimed to have possession of the land from the dam, which marked the starting point of his (Dawson's) deed, down the river to a place known as the "O'Donnell Farm," with all that drainage and lands the water would flow in between these points and the Vermejo River; that it included the land claimed by him, the defendant; that they were residing upon a part of the land themselves, and that Maulding and Curtis told him to take possession of the land he claimed, and on the line fixed by them as his lower boundary he built a stone fence across the valley. He also testified that in June, 1868, he had a conversation with Lucien B. Maxwell in regard to the tract of land which he claimed; that Maxwell knew he was in possession of it; that the boundaries of the tract set forth in his plea were pointed out by Maxwell, and that he paid $3,700 for the land, though he afterwards stated that he paid the money to Mr. Curtis, who gave it to Maxwell. On cross-examination, he produced a deed from Maxwell and wife to himself, bearing date January 7, 1869, in which, for a consideration of $3,700, Maxwell conveyed to him the property admitted in this suit to belong to him, and described as follows:

"All the land or ground now suitable for farming or cultivating purposes in the valley or drainage of the Vermejo River, County of Mora, Territory of New Mexico, within the following boundaries, to-wit: beginning at a certain dam at the head of a certain ditch at the right-hand point of rocks, from thence running down on the north side of said river to a certain other pile of rocks, on a knoll or elevation, with some bushes near thereto; thence running very near southward across said river to a pinon tree

Page 151 U. S. 590

to the right of a ridge, near a wash, which tree is marked with a letter 'L;' thence running up said river on the south side to the place of beginning; containing about _____ acres, more or less."

This deed he claimed to have received by mail some time in 1869, and admitted to have shown to one Morley, who, in 1871, came to his house, under orders from the president of the plaintiff company, to survey the land. He appears to have entered upon the land the year before the deed was given, to have made numerous improvements, such as houses, orchards, and fences, and to have put the land under cultivation by means of irrigating ditches. All these improvements, except some cattle fences, were put upon the land described in the deed. Upon redirect examination, he stated that when he first came on the Vermejo, in the early part of 1868 or 1869, passing through, Curtis and Maulding told him that they had a contract with Maxwell for a piece of land there, beginning at the dam and running down the river to the lower end of what was known as the "O'Donnell Farm," with all the drainage, with the water that flowed from between this dam and the lower end of the O'Donnell farm. That they asked him (defendant) if he wanted some of it.

"I studied a good while, and said, 'If you will let me have the upper part,' which they agreed to do. . . . The contract which they had was for a block of land. . . . Curtis and Maulding told me that they had this whole drainage belonging to this block of land, and this was my part, and I talked with them often about it, and I talked with others."

He further testified that when Maxwell pointed out to him the boundaries of the land, they were down at a stage station, some four miles away, though they could see the prominent points of the tract from where they were, and that this was six months before he received his deed.

The case was tried by a jury, and a general verdict of not guilty returned, upon which final judgment was entered. The case was then carried to the supreme court of the territory, by which the judgment of the district court was affirmed. Plaintiff thereupon sued out a writ of error from this Court. chanrobles.com-red

Page 151 U. S. 591

The third assignment of error, on which the case turns in this Court, will be found in the margin. *