On Motion for Rehearing. The defendants (appellees) have moved for rehearing setting up grounds therefor which resolve themselves into two claims of error. First, it is said that in holding the plaintiff's complaint good as one to quiet title to real estate, we have adopted a theory foreign to that employed by the trial court and advanced by the plaintiff both below and before this court. Next, it is claimed we have ourselves determined in the opinion filed that the plaintiff is the equitable owner of the property described in the complaint rendering it only necessary for the plaintiff, after remand, to exhibit a copy of our opinion and move entry of judgment in his favor.
The error in interpretation indulged by counsel in advancing the second ground is so obvious that we first shall demonstrate its fallacy. In our opinion already filed we quoted at considerable length allegations of the plaintiff's complaint which, if true, would vest in him equitable ownership of *Page 466 both the real estate and personal property involved. Accordingly, we followed the quotation with this observation, to-wit:
"The foregoing allegations make of plaintiff the full beneficial owner of the real estate and of the personal property, also, as for that matter."
It never occurred to us that this language could be interpreted as a judicial fiat, relieving the plaintiff of the necessity of proving what he alleged. It has been mistakenly so construed by counsel for defendant. Hence, we now affirm what we think the language as it stands obviously imports, namely, that the allegations made, when proved, make of the plaintiff full beneficial (equitable) owner of the property involved. If the language quoted permissibly could bear the meaning ascribed to it by counsel, and we think it cannot, to the extent that it does, the same is here and now utterly repudiated.
The claim is made and argued with much vigor that before the plaintiff can maintain a suit to quiet title as equitable owner of the real estate involved he first must establish in a separate suit that he is such equitable owner as the beneficiary of a constructive trust; that in such suit he would be compelled to secure personal service on the defendants as one to enforce a trust. We find no justification in the authorities for this claim. The decisions support the conclusion that the facts establishing a plaintiff as equitable owner may properly be proved as the basis of a decree in his favor in the suit to quiet title. Polson Sheep Co. v. Owen, 110 Mont. 601, 106 P.2d 181; Neve v. Allen, 55 Kan. 638, 41 P. 966; Hunt v. Hunt, 307 Mo. 375,270 S.W. 365; Mitchell v. Black Eagle Mining Co., 26 S.D. 260,128 N.W. 159, Ann.Cas. 1913B, 85; Casstevens v. Casstevens,227 Ill. 547, 81 N.E. 709, 118 Am. St. Rep. 291. The plaintiff relying on an equitable title may fail in his proof in which event the decree will go against him. However, this fact in no way argues against his right to maintain the suit.
It is also argued with great earnestness, that we have unwarrantably held the complaint states a cause of action to quiet title to real estate because contrary to the theory urged below and adopted by the trial court. There is more than a grain of truth in this contention. Nevertheless, having found it necessary to reverse and remand the cause in any event by reason of error in the trial court's ruling as to presence of the non-resident defendants for purpose of testing ownership of the personal property, we feel it in the interest of justice to declare what our examination of the complaint discloses, namely, that allegations sufficient to state a cause of action in a suit to quiet title to real estate appear therein. *Page 467
After all, the resident defendant, Albuquerque National Trust and Savings Bank as a representative of the non-resident defendants, has filed an answer joining issue with the plaintiff in the latter's claim to ownership of the personal property and of the real estate as well, as for that matter, although as to the real property we have held the non-resident defendants themselves must be brought in and may be by substituted service, viewing the complaint as one in a suit to quiet title so far as the real estate be concerned. Obviously, an ancillary administrator having already joined issue as to ownership of the personal property, the claim to both types of property should be heard and determined in the one and present suit, with all interested parties before the court, even though in permitting it, we depart somewhat from the theory employed below in appraising the complaint. It is a construction of same supported by allegations found therein, altogether apart from the prayer. Any contrary holding, for all practical purposes, would render the plaintiff remediless. The beneficiaries under the will reside in four different states. If in the kind of suit counsel insists should be brought and would have us hold the complaint herein alone to assert personal service be necesessary, as they claim, then plaintiff could never bring all objecting defendants into court in a single suit so far as the real estate be concerned. He can do so in a suit to quiet title instituted in New Mexico. The amended complaint states a cause of action viewed as such. Under such conditions, we will not say to plaintiff, suing in New Mexico where both the real and personal property are located, that although he may have a right, he is without a remedy.
The motion for rehearing will be denied and it is so ordered.
BRICE, C.J., and LUJAN, McGHEE, and COMPTON, JJ., concur.