(specially concurring).
I agree Mr. Justice LUJAN has reached the correct result in this case, but feel I should say something concerning the issues and the reasons controlling my decision.
For a more complete statement of the facts the reader is referred to the opinion of Mr. Justice LUJAN.
The complaint in the divorce case, No. 3493, Rio Arriba County, 'contains the following in addition to conventional grounds for divorce and custody of a child of the parties:
“6. That during said marriage, the parties hereto have acquired the following described property, to-wit: One ranch, consisting of 171 acres of land, (Various items of personal property)
“That there is a government loan of' $3,400.00 on the above ranch, together with a personal debt of $700.00.”
The prayer contained, among other matter,, the following:
“3. That a division of the community property acquired by the parties hereto be made, or in the event the defendant is allowed to keep said property, that a reasonable settlement of her interest be made with her, or if the Court holds that the community property is to remain with defendant, that upon the payment of the indebtedness, now owing on same, that plaintiff be allowed one-half of the profits derived therefrom.
“4. That the community property acquired by the parties hereto is not to be sold or disposed of in any way without the consent of plaintiff.”
The matter contained in paragraph 6 of the complaint was, in my opinion; sufficient to allege the ranch here in dispute was the community property of the plaintiff and defendant; and the prayer, to which resort may be had for light on the pleader’s theory of the case, shows paragraph 6 was so intended. The portions of the prayer quoted also throw light on the unusual wording of paragraph 5 of the decree, which reads:
“5. That the defendant herein be and he hereby is ordered to retain the ranch and ranch property, and continue to farm the same, except such part as is divided between the parties herein as the interest of each in and to the personal property of the parties, and the said defendant hereby is solely responsible for the incumbrances and indebtedness which now exists against said property as hereinabove enumerated.”
Among the findings of fact which are incorporated in the judgment we find, among other matter, the following:
“3. That during said marriage, the parties hereto have acquired the following described property, to-wit: One ranch, consisting of 171 acres of land. (Various personal property as described in the complaint)”.
It was also found encumbrances and indebtedness amounting to $5,312.30 existed against the property.
A finding was made the plaintiff was entitled to receive $15 per month for the support of the minor child of the parties, and was also entitled to have certain household goods and provisions set aside to her as her sole and separate estate. It was also found the defendant was entitled to have milk delivered to her weekly in Chama, and to have certain meat delivered to her in the fall and spring of each year. The decree properly awarded her the household goods and provisions mentioned in this paragraph, and also made a proper award of the alimony, custody of the child, and granted a divorce.
As I construe the most unusual language of paragraph 5 of the decree, the only disposition made of any of the property was the personal property therein awarded to the wife. The defendant was left in possession of the remaining personal property and of the ranch, and commanded to there stay, labor, and pay the indebtedness and alimony.
Although the defendant defaulted in the divorce case he was present at the hearing. It is clear to my mind the plaintiff and defendant erroneously regarded the real and personal property named in the complaint as community property, and had the decree adjudged a division thereof equally between the parties, although not necessarily in kind, it would have been binding on the parties.
The contention of the defendants in this case that the complaint in the divorce action did not put the title to the property in issue is so clearly erroneous, in my opinion, as not to merit the citation of authority.'
Due to failure of the judgment to adjudge the status of the ranch in its decretal part, we have the same situation as in Dunham v. Stitzberg, 1948, 53 N.M. 81, 96, 201 P.2d 1000, where a finding in the probate court that a named party was the sole heir of the deceased was not incorporated into the decretal part of the judgment, and was held to be of no force and effect in subsequent litigation involving the ownership of the property. So the title to the ranch could be litigated anew without regard to the findings of fact and conclusions of law relating thereto in the divorce case.
The claim is made by the plaintiff that the deed to the real estate in which Hicks was the grantee was delivered when she and Hicks were husband and wife; that, therefore, the land was community property.
It is true the deed to the ranch was received while the marriage relation existed, but the inception of the title was the purchase contract executed in the year previous to the marriage between Hall as seller and Hicks as the purchaser, at which time Hicks paid $800 on the contract price. According to the findings of the trial court an additional payment of a like amount was made during the existence of the marriage relation, but the money came from the sale of livestock which was the separate property of Hicks. Hicks and wife, it is true, borrowed $3,400 from the Federal Land Bank of Wichita, giving a mortgage on the ranch as security, but this loan was repaid from earnings of Hicks after the divorce decree was entered.
The defendant cites many Washington cases holding the time of the delivery of the deed and not that of the execution of the contract determines the question of whether the property acquired is separate or community property, but we are committed to the doctrine that the time of the initiation of the right determines the status. McDonald v. Lambert, 1938, 43 N.M. 27, 85 P.2d 78, 120 A.L.R. 250, and other cases cited in the opinion of Mr. Justice LUJAN. This is true even though a major portion of the purchase price is thereafter paid with community funds, the spouse owning the separate property being, however, 'indebted to the community for such advance. McElyea v. McElyea, 1945, 49 N.M. 322, 163 P.2d 635; Laughlin v. Laughlin, 1945, 49 N.M. 20, 155 P.2d 1010.
In Texas if the community credit is used as security for the unpaid purchase price of real property where one spouse has made the down payment with separate funds, the community owns a proportionate interest therein, but such is not the rule here.
The ranch was in fact the separate property of the husband, Hicks.
Nor can we agree with the contention of the plaintiff the ultimate result reached by the trial court was based on inadmissible evidence. It held paragraph 5 of the decree ambiguous, and with this conclusion we agree. In fact, the decree adjudged the status of only the personal property awarded to the wife. To have stopped with the introduction of the decree, or even the pleadings in the divorce case would have left the case up in the air, due to the failure of the trial court in the divorce case to adjudge the status of the ranch as above pointed out.
It- is true the introduction of testimony went beyond the limits fixed by the pretrial order, but this sacred cow of the First Judicial District Court named “pretrial” may occasionally be violated when the ends of justice so require, and her despoiler escape punishment, provided an objecting litigant is not denied the right to attempt to repair the damage, if any, on application seasonably made. As heretofore indicated, when the decree in the divorce case failed to adjudge the status of the ranch and finding of fact No. 3 in the decree became functus officio or dead, testimony showing its true status was admissible.
I am of the opinion the disposition of this appeal is controlled by what I have said above, and I therefore concur in the affirmance of the judgment.