FISCHER V. MASCARENAS, 1979-NMSC-063, 93
N.M. 199, 598 P.2d 1159 (S. Ct. 1979)
MICHAEL W. FISCHER and NANCY J. FISCHER,
Plaintiffs-Appellees,
vs.
PEDRO MASCARENAS and JENNIE MASCARENAS,
Defendants-Appellants.
SUPREME COURT OF NEW MEXICO
1979-NMSC-063, 93 N.M. 199, 598 P.2d 1159
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY, Lorenzo F. Garcia, District Judge
Felker & McFeeley, Randolph B.
Felker, Santa Fe, New Mexico, Attorneys for Plaintiffs-Appellees.
Thomas G. Rice, Las Vegas, New Mexico,
Attorney for Defendants-Appellants.
MACK EASLEY, Justice, wrote the opinion.
WE CONCUR: DAN SOSA, JR., Chief Justice, WILLIAM R. FEDERICI, Justice
{1} The Fischers (Fischer)
sued Mr. and Mrs. Mascarenas (Mascarenas) to enjoin the latter from interfering
with real property claimed by Fischer. Mascarenas counterclaimed to quiet title
to the property. Mascarenas' counterclaim was dismissed on Fischer's motion for
summary judgment, and Mascarenas appeals. We reverse.
{2} We inquire if an
affidavit of an attorney stating that he has examined title to the land and has
found that Fischer has good title is sufficient to negate an affidavit by
Mascarenas that he owns the same land, which is identically described in deeds
of the respective parties, so as to entitle Fischer to summary judgment.
{3} Mascarenas has three
deeds which he contends give him good title to the land. However, an
uncontradicted affidavit of a surveyor states that two of these deeds, executed
in 1922, in Mascarenas' chain of title do not describe the property in question
or any part of it. The third deed, executed in 1978, contains the same
description as Fischer's deed. Both sides claim title from a common predecessor
in title, several times removed.
{4} Mascarenas paid taxes on
the property for some twenty years. He claims to have "possessed" the
property and erected "no trespassing" and "no parking"
signs on the property some time prior to the filing of this action.
{5} Fischer introduced an
affidavit of an experienced real estate attorney, which states that he examined
the records and determined that Fischer has fee simple title. However,
instruments showing the full chain of title of the two parties were not
introduced into evidence.
{6} Mascarenas relies upon
his deed describing the exact property in question, his unequivocal assertion
of ownership of the land contained in his affidavit, the payment of taxes, and
his "possession" of the land and claims this creates a question of
fact as to ownership, precluding summary judgment.
{7} Fischer answers that
Mascarenas has admitted that his claim to the land is based on one of the three
deeds or on adverse possession. Fischer alleges that, since all of these claims
are shown to be defective by the uncontradicted affidavits before the court,
summary judgment was proper.
{8} Since the uncontradicted
evidence of the survey indicates that the 1922 deeds do not describe the land
in question, those deeds cannot be the basis of a valid claim and cannot
provide color of title for purposes of adverse possession.
Sanchez v. Garcia,
72 N.M. 406,
384 P.2d 681 (1963). The 1978 deed describes the correct property
and establishes color of title, but the statutory period for adverse possession
has not elapsed since the deed was given. §
37-1-22, N.M.S.A. 1978.
{9} Mascarenas also argues
that summary judgment was not proper because Fischer failed to establish his
own title to the property. Fischer responds that the affidavit of the attorney
which states the opinion that the land is held by Fischer in fee simple is
adequate evidence on this point. Considering the disposition we make of the
case, it is not necessary to decide this issue.
{10} Summary judgment, being
an extreme remedy to be employed with great caution, cannot be substituted for
a trial on the merits as long as one issue of material fact is still present in
the case.
Pharmaseal Laboratories, Inc. v. Goffe,
{*201}
90 N.M. 753,
568 P.2d 589 (1977); N.M.R. Civ. P. 56 (c), N.M.S.A. 1978. The
remedy should not be employed where there is the slightest doubt as to the
existence of an issue of material fact.
Spears v. Canon de Carnue Land Grant,
80 N.M. 766,
461 P.2d 415 (1969). Even where the basic facts are undisputed, if
equally logical but conflicting inferences can be drawn from the facts, summary
judgment should be denied.
Barber's Super Markets, Inc. v. Stryker, 81
N.M. 227,
465 P.2d 284 (1970);
Ute Park Summer Homes Ass'n v. Maxwell Land
Gr. Co., 77 N.M. 730,
427 P.2d 249 (1967);
Hewitt-Robins, Inc. v. Lea
County Sand & Gravel, Inc., 70 N.M. 144,
371 P.2d 795 (1962).
See
also United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed.
2d 176 (1962);
Exnicious v. United States, 563 F.2d 418 (10th Cir.
1977).
{11} The deed to Mascarenas
conveying this specific property, the payment of taxes, the
"possession" by Mascarenas, the presence of a common predecessor in
the chain of title of both parties and the other circumstances supporting the
Mascarenas claim raise an issue of material fact as to the ownership of the
land. Although most of these facts are not disputed, equally logical but
conflicting inferences can be drawn, making summary judgment impermissible.
Pharmaseal,
supra;
Yeary v. Aztec Discounts, Inc., 83 N.M. 319,
491 P.2d 536
(Ct. App. 1971). The evidence of Fischer, at its best, proves only that he has
legal title. It does not rule out an inference that equitable title is in
Mascarenas, and does not preclude an inference of mistaken description in the
deed to persons in the Mascarenas chain of title from the common predecessor in
title of the parties.
{12} We reverse the decision
of the trial court and remand the case for trial.
WE CONCUR: DAN SOSA, JR., Chief Justice, WILLIAM R. FEDERICI,
Justice