OPINION OF THE COURT Tomas Ortega, plaintiff below, sued the First National Bank of Albuquerque, claiming that a certain deposit standing in the name of Pablita P. Ortega, his wife, was community property, and that he had, in law, the right to control it. Pablita P. Ortega intervened, claiming the deposit as her separate property, the proceeds of sheep set apart to her by order of a court of record in Arizona, in a divorce suit there pending, pursuant to a stipulation between the parties. As between husband and wife, the issues were resolved in favor of the latter, and the former has not appealed.
The issues here involved are raised by an intervention by Ana Maria Ortega, mother of Tomas Ortega, the plaintiff. Her claim was based on a contract with her son, made in 1917, under which her counsel contended that the title to the sheep remained in her. Construing that contract, the trial court overruled the contention. He held, however, on the theory of a trial amendment allowed, that, while the contract in terms passed legal title to Tomas Ortega, it was procured from Ana Maria Ortega by such fraud that a court of equity should impress upon the legal title a constructive trust. On this theory the deposit was decreed to Ana Maria Ortega. Pablita P. Ortega has appealed.
Appellant vigorously challenges the correctness of the conclusion above stated. We need not consider that proposition, since another question precedes it and is decisive.
In bar of appellee's cause of action in intervention, appellant pleaded, and introduced in evidence, the proceedings *Page 607 in a court of record in Arizona in which appellee was plaintiff and appellant and her husband, Tomas Ortega, the plaintiff here, were defendants. The court found, and no one here questions, that the cause of action set up in Arizona is the same as that here alleged in intervention. The Arizona suit, commenced March 16, 1926, was terminated March 31, 1926, the day following the institution of the present suit, by an order "that said action be, and it is, dismissed with prejudice."
Neither the trial court nor counsel for appellee questioned that the dismissal with prejudice was a final judgment of a court of record entitled to "full faith and credit" in the courts of this state. The defense was disallowed on the theory that the judgment was procured through fraud practiced upon appellee. The fraud relied upon is in procuring from appellee a written retraxit, the filing of which resulted in the dismissal. It was procured by Tomas Ortega, Jr., son of appellant, and Tomas Ortega, the plaintiff, and grandson of appellee. Its language is as follows:
"MOTION TO DISMISS SUIT "Comes now the above named plaintiff in her own person and respectfully moves this Honorable Court to make and enter an order dismissing the above entitled cause with prejudice, and she hereby authorized her attorney in fact, Tomas Ortega, Jr. to employ an attorney to present this motion in open court, said attorney to be any member of the Bar of the State of Arizona, with the exception of Attorney Isaac Barth, or any other attorney who has appeared in this action either for the plaintiff or for the defendant.
"Dated this 19th day of March, 1926, at Phoenix, Maricopa County, Arizona."
At the same time, appellee executed a revocation of the power of attorney under which Mr. Barth, mentioned in the retraxit, had instituted the suit, and gave power of attorney to Tomas Ortega, Jr., to exercise the authority theretofore enjoyed by Barth.
It would unduly lengthen the opinion to set forth the evidence, the findings, and the refusals to find, bearing upon this question. No single fact of importance is in dispute. The question is whether the facts and circumstances warrant the general conclusion of fraud. Tomas *Page 608 Ortega, Jr., and appellee were the only witnesses testifying to the whole of the transaction. The latter did not contradict a single fact asserted by the former, and she expressly admitted a number of the more important. She merely denied any recollection that it was explained to her that she was dismissing a pending suit. On the other hand, her grandson testified that it was explained to her, not only that she was dismissing the suit, but that she was taking final action and could not renew her claim, and that it was her own suggestion, after an explanation of the situation existing, that she have nothing to do with appellant or the sheep turned over to her, but that she content herself with what could be realized from the remaining sheep.
Aside from appellee's failure of recollection there is no evidence of any false representation or of any concealment. There was no confidential or fiduciary relation. There is no evidence of persuasion or of influence. Appellee's daughter and her son-in-law were present at all times and advised her. The son-in-law, as appellee herself says, was a good business man. She admits that she asked him to represent her. The original papers were drafted, at appellee's request, and brought to her by her grandson. On learning who had drafted them, she expressed a preference for a Spanish speaking lawyer, an old family friend. The son-in-law summoned him, and he came and fully interpreted and explained the documents. The motion to dismiss he drafted himself. His testimony as to communications was excluded on the ground of privilege.
[1] There is nothing then that will support the conclusion of fraud unless it be "suspicious circumstances and inherent improbabilities." Martinez v. Floersheim Merc. Co., 27 N.M. 245,199 P. 905. No inherent improbabilities are pointed to. What are the suspicious circumstances? Appellee was 74 years of age and illiterate. That of course did not disqualify her from doing business when properly advised. Two circumstances evidently most impressed the trial court, judging from the opinion dictated at the conclusion of the evidence. They were *Page 609 that the motion to dismiss was presented to the Arizona court by Tomas Ortega, Jr.; a layman, and that the latter was acting in the interest of his mother, who principally benefited by the dismissal.
The court record introduced does not show that any attorney at law appeared upon the motion to dismiss. Tomas Ortega, Jr., testified that, under employment by him, Mr. Don Adell, a Holbrook attorney, submitted the motion to the court. Whether the court overlooked or disbelieved this evidence, or considered it immaterial, we do not know. But, even if Tomas Ortega, Jr., filed this retraxit, and brought it to the attention of the trial court, we see nothing in the act to cast suspicion upon the previous transaction. It was appellee's own motion, not her grandson's. Whether he filed it or procured an attorney to do so does not, in our judgment, aid in determining whether appellee was overreached.
Appellant freely admitted that her son, Tomas, Jr., had espoused her cause throughout her marital trouble, and had been her trusted adviser and agent. It is true that the dismissal of the suit was a benefit to appellant. It is not at all certain from the evidence that the visit of Tomas Ortega, Jr., to appellee was made in the interest of his mother. The remaining sheep were in his possession. He considered that he had a lien on them for services. He understood that Barth had power of attorney to sell them. It was regarding these sheep, as he testifies, that he desired an understanding with his grandmother; not regarding the sheep which his mother had already received, sold, and shipped out of the state. Be that as it may, there appears to have been no misrepresentation or concealment as to appellant's interest or the benefit which would result to her from the dismissal of the suit.
We find no testimony in this case pointing to fraud. The trial court's conclusion is contrary to all the testimony adduced on the point. We find no inherent improbability in that testimony nor any suspicious circumstances which seem to warrant rejecting it as untrue. So we must hold the conclusion of fraud (finding XVII given at appellee's request) erroneous. *Page 610
The judgment will be reversed, and the cause remanded, with direction to the district court, upon the remaining findings, to enter judgment for appellant. It is so ordered.
PARKER, C.J., and BICKLEY, J., concur.
ON MOTION FOR REHEARING