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THOMPSON v. MAXWELL.

October 1, 1877

THOMPSON
v.
MAXWELL.



APPEAL from the Supreme Court of the Territory of New Mexico. The facts are stated in the opinion of the court.

The opinion of the court was delivered by: Mr. Justice Bradley delivered the opinion of the court.

Mr. Matt. H. Carpenter and Mr. Joseph B. Stewart for the appellants.

Mr. W. W. MacFarland, contra.

In 1859, Alfred Bent and his two sisters, Estefana and Teresina, with their husbands, filed a bill in chancery in the District Court of the Territory of New Mexico for the County of Taos, against Charles Beaubien, Guadalupe Miranda, Lucien B. Maxwell, and Jos e Pley, claiming and alleging that Charles Bent, deceased, the father of Alfred and his sisters, at the time of his death, was jointly interested with said Beaubien and Miranda, to the extent of one-third part, in a certain specified tract of land in said territory, amounting to two millions of acres, which had been granted to said Beaubien and Miranda by the New Mexican government in 1841, and stood in their names; and that as to said third part they were trustees for said Charles up to the time of his death, and from thenceforward trustees for the said Alfred and his sisters as heirs-at-law of said Charles. The bill further stated that Maxwell and Pley pretended to have become interested in said land; and prayed as against all the defen ants that the title of said Charles Bent to the third part thereof might be established, and for a partition. Such proceedings were had in that suit, that, on the 29th of May, 1865, a decree was made, establishing Bent's title to one undivided fourth part of the land, the right of succession of the complainants, and adjudging that a partition be made according to the prayer of the bill. Commissioners for making partition were appointed by the decree, and ordered to report at the next term, the court reserving its decree as to the partition and the costs of the cause.

After this decree was made, certain negotiations took place between Maxwell (who had acquired the principal interest in the property) and the complainants, looking to a settlement of the controversy, and a purchase by Maxwell of the complainants' interest. Whether these negotiations were concluded in Alfred Bent's lifetime, or not until after his death, subsequently became a matter of controversy between the parties. He was accidentally killed on the 15th of December, 1865, leaving a widow, Guadalupe Bent (who afterwards married George W. Thompson), and three infant children, Charles, Julian, and Alberto, his heirs-at-law.

The commissioners for making partition never reported; and the next proceeding in the cause, so far as appears by the record, was an order made in April, 1866, making the infant children and heirs of Alfred parties complainant, and continuing the cause. A few days afterwards, in the same term, the following order was entered in the cause:––

'By agreement of the parties, the continuance of this cause, made on a former day of this term of this court, is set aside; and, on motion of solicitors for the complainants, Guadalupe Bent is hereby appointed guardian ad litem and commissioner in chancery for the minors of Alfred Bent in this cause, with full power to execute deeds or carry into execution all sales or transfers made of her [their?] interests in and to the real estate therein described to Lucien B. Maxwell, one of the defendants in said cause, and that this cause stand continued until the next term of this court.'

On the third day of May, 1866, Guadalupe Bent, as guar dian ad litem of Charles, Julian, and Alberto, and commissioner under the foregoing order, executed a deed of conveyance in fee to the said Maxwell for the one undivided twelfth part of the property in question, belonging to the said Charles, Julian, and Alberto, as heirs of their father. The sisters of Alfred, with their husbands, executed deeds for their interest in the lands about the same time.

In September Term, 1866, another decree (probably intended as a substitute for the order made in April) was made in the said cause, in the words following, to wit:––

'Whereas an interlocutory decree was rendered at a former term of this court in the above cause, decreeing one-fourth of the land mentioned in the petition herein to the complainants in this cause, and appointing commissioners to divide and set apart the portion so decreed; and whereas said interlocutory decree was never carried into effect; and whereas, since the time of the rendition of said decree, a mutual agreement has been made between the parties to this cause, settling and determining all the equities in the same:

'It is, therefore, hereby ordered, adjudged, and decreed, by the mutual consent and agreement of the said complainants as well as of the said defendants in this cause, that the interlocutory decree above mentioned, together with all orders made under and by virtue of the same, be set aside; and, by the mutual consent and agreement of the said parties, it is hereby further ordered, adjudged, and decreed that the said Lucien B. Maxwell, one of the defendants in this cause, pay to the said complainants the sum of $18,000, to be divided among them per stirpes; that is, to the said Aloys Scheurick and Teresina Bent, his wife, one-third part, and to Alexander Hicklin and Estefana Bent, his wife, another third part, and to Charles Bent, Julian Bent, and Al erto Silas Bent, the children and heirs of Alfred Bent, deceased, the remaining third part, to be equally divided among the said last named, and to be paid into the hands of Guadalupe Bent, widow of the [said] Alfred Bent, deceased, and guardian ad litem for said children, for the purposes of the said division.

'And, upon the further consent and agreement of the said parties, it is hereby further ordered, adjudged, and decreed that the said Alexander Hicklin and Estefana Bent, his wife, the said Aloys Scheurick and Teresina Bent, his wife, and the said Guadalupe Bent, guardian ad litem for Charles Bent, Julian Bent, and Alberto Silas Bent, children and minor heirs of the said Alfred Bent, deceased, within ten days from the date of this decree, make, execute, and deliver to the said Lucien B. Maxwell good and sufficient deeds of conveyance of all their right, title, interest, estate, claim, and demand of, in, and to the lands in controversy in this cause, the said Guadalupe Bent, guardian ad litem as aforesaid, in the name of Charles Bent, Julian Bent, and Alberto Silas Bent, minor heirs as aforesaid, and the said Alexander Hicklin and Estefana Bent, his wife, and the said Aloys Scheurick and Teresina Bent, his wife, in their own names. And, by further consent and agreement between the said parties, it is hereby further ordered, adjudged, and decreed that the costs of this suit shall be paid, each of the said parties to pay the separate costs in the same made by themselves.'

This last decree seems to have been the termination of proceedings in the cause. No further conveyances were executed, and nothing else was done to carry the decree into effect.

On the first day of August, 1870, nearly four years after the entry of the last decree, the proceedings were instituted which are now brought here on this appeal. On that day, the present appellees, The Maxwell Land-Grant and Railway Company (to whom by mesne conveyances a large portion of the land had, in the mean time, been assigned), together with Lucien B. Maxwell and his wife, filed in the same court a bill against Guadalupe Thompson, administratrix of Alfred Bent's estate, her husband, George Thompson, and the said infant children and heirs of Alfred Bent, in which bill, after setting forth the grant to Beaubien and Miranda, and the derivative title of the complainants in the land, and the substance of the proceedings which had taken place in the previous suit, the complainants proceeded to state at large the terms of the compromise agreement which had been made, and which had resulted in the final decree made in that suit. They alleged that his compromise was agreed upon in the lifetime of Alfred Bent, though not carried out until after his death, and that its terms were that Lucien B. Maxwell should pay to the complainants in the original suit $18,000, or $6,000 apiece; and that, in consideration thereof, Alfred Bent and his two sisters should release and discharge the premises and every part thereof; and the said Maxwell and wife, from the said trust or equitable claim, and, in confirmation thereof, should convey to Maxwell all their right, title, and interest in and to the premises. The bill further alleged that the said $18,000 was duly paid (the sum of $6,000 due to Alfred being paid to his wife as administratrix of her husband's estate, and not as guardian of his children); and that the sisters of Alfred, with their husbands, executed conveyances in accordance with the compromise agreement, in May, 1866, and that Guadalupe Bent, by a deed of conveyance executed by her as guardian aforesaid, undertook to convey the interest of the children as before stated; and that by said compromise and conveyances the said trust became extinguished, and the title of Maxwell became freed and discharged therefrom. The bill then set forth certain errors, which it was alleged had been committed in the original proceedings, and which cast a cloud upon the title of the complainants, namely: First, that it did not appear therein as the fact was) that an agreement for the sale of the equitable interest of Alfred Bent was made by him, in his lifetime, with said Maxwell; secondly, that the interlocutory decree (of May, 1865) should not have been set aside, but should have been modified; thirdly, that the money paid by Maxwell for the interest of Alfred Bent should have been directed to be paid to his personal representative, and not to the guardian ad litem of his children; and, fourthly, that, upon such payment being made, the court should have decreed and adjudged the said trust and ...


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