Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1915-11-17
EIGHT OPINIONS
HANDED DOWN BY
SUPREME COURT
Many Matters of Importance
Passed Upon by State'S
Highest Tribunal Now in
Session at Santa Fe,

pellees VS.. p. $. Batemu. appellant
from Chayes county.
This Is "a suit IN equity brought by
plaintiffs against defendants 20 re-
form an instrument purportiug 10 he
"A deed and to quiet title 10 certain
lost described n the complaint
Upon issue joined and testimony
taken the court made certain findings
of law and fact ANA rendered judg
ment for the appellees plaintiffs he-
low. from which Judgment appellant
has prosecuted this appeal ludgment
Of the court below affirmed
syllabus by the Court.
L. objection made at the rial 81
the sufficiency ot "a pleading must
definitely point out the alleged error
and when that is not done the PLEAD
ing will be literally construed In order
To uphold the judgment
. Equity has jurisdiction TO re-
form written instruments In but two
wen defined cases, ClD Wncre thcre IS
q mutual mistake that is. where there
has been meeting of minds, and
agreement actually entered into. hut
the instrument, In it's written form
does not express what was really m-
tended by the parties thereto, and 60
where there has been mistake OF
one party accompanied by fraud or
other inequitablc conduct of the re-
naming parties
9. Where relief by way Of reforma-
ton is incidental 20 the main purpose
of a suit It is not necessary to allegc
a demand to correct a mistake and "a
refusal thereof
4. A court of equity win not re-
form void instrument Held that
the instrument which is sought to De
reformed in this suit is not void
3. In this jurisdiction q mortgage
on real estate is simply security for
the payment Of a debt leaving the
legal title Of The mortgagcd premises
in the mortgagdr
&. tO A morlgagee i'm mortgage
deed which contains a power of sale
on default, cannot become a purehas-
er at a sale which he, himself makes
under the power either directly or
through the agency of third person,
unless expressly permitted by the
terms Of the Instrument
6. 90 \ Dortgagees purchase al
his own foreclosure sale. when not
authorized. Is voidable only. giving to
the mortgager an election either TO
ratify ana affirm the sale or to avoid
1t and have it set aside.
g. (e) The mortgager's option must
be exercised within reasonable time
and before the property has passed
into the hands of an innocent pur-
chaser for value and without notice.
z. (aJ In H. suit for reformation,
the complaint must make It appear
complainant is pursuing his remedy
in good time after discovery of the
injury otherwise, the same is dcmur-
rahle.
z, CbJ Where complaint is ST.
lent as to the time of discovery Of
a mistake. it must be taken To- have
been known to an parties interested
from the time the instrument was
made.
T. (c) An objection to lhc introduce
ton of any evidence. made at the be-
ginning Of the trial, on the ground
that the complaint does not state a
cause Of action is iu the nature of q
demurrer ore tenus,
T. (d) A complaint ana reply are
considered together in determining "a
demurrer ore tenus directed 10 the
complaint, where The reply alleges
matters amitted by, and which should
have been stated in the complaint. be-
cause the irregularity of pleading Inn
proper matters in the reply is waived
by accepting It ana In refusing TO
move to strike it out or otherwise at
lacking it.
g, The tenor of the instrument
which the parties seek to have decrecd
by the court. In substitution Of the
agreement as reduced TO writing, must
appear upon the face Of the COM
plant.
.. MORTGAGE in making "a con-
yeyance under u power in a mortgage
should not execute the conveyance n
his own name. but in that Of his prin-
cpaL as the lattcr's attorney In fact.
10. (a) All the essential requisites
Of the power contained in a mortsagc'
must be strictly complied with.
1o. CD Recitals contained in "a.
deed executed BIZ virtue Of power
of sale contained in mortgage, that
proper notice of sale was given. are
prima facie Of such facts as against
the parties and privies to the instru-
ment contained the power. and the
burden Of overcoming such proof rests
upon the party asserting the contrary
Opinion by Hanna, j Roberts, g.
J. and Parker J, eoncurriRg.
George G. Huss, appellee, vs. James
NJ, Dye, administrator. etc. appellant
from Chaves county.
This is a suit by appellant TO COM
pell the administrator To pay a claim
which had been refused payment byI
the administrator for the reason That
the same had not been presented dur
ing the one year prescribed IN the
statute. The claim was also dlsal-
lowed by the probate court Appel
liant brought suit In the district court
AT the close Of plaintiffs testimony
the defendant demurred to the evil
dence which was overruled by the
court, and judgment rendered against
appellant as such administrator for
the full amount Of the claim from
which judgment this appeal was pray
ed
Judgment Of the district court re-
versed cause remanded for new trinl
syllabus By the Court.
All claims against estates Of de-
ceased persons not filed ia probate