The

Moreover, where, as appears in this instance, the parties agree that the one shall bring a suit to dissolve the marriage, and that the other will make no defense, or a mere nominal defense, which is indicated by the context, the agreement becomes collusive and fraudulent, and is without validity. A contract of this character may be regarded not only as conceived in fraud, but as a fraud upon the court, and it comes within the reason of the maxim, "ex turpi causa non oritur actio." Mutual agreement of a male and female who are of the requisite age and capacity may create the marriage relation, but it can never dissolve it. The state being founded upon the family, so high is the marriage status regarded by mankind, so necessary is its permanency to promote the public welfare and private morals, that the state, to every marriage contract entered into within its jurisdiction, makes itself a party, in the sense that it will not permit its rescission or dissolution except for a cause provided by law, the existence of which is to be ascertained by a court of competent jurisdiction, upon evidence regularly submitted, in a proper proceeding instituted in good faith for that purpose. The parties cannot even consent to a decree in open court, nor stipulate as to the facts. decree must be based on absolute proof. The welfare of humanity, the intelligence and progress of the human race, high moral and social ethics, alike demand this. Any other method or device by which the contracting parties attempt to sever or to facilitate the severing of the bonds of matrimony, in the eye of the law, contra venes public policy, is regarded as contra bonos mores, and 'is void and ineffectual. Therefore a contract which is designed to facilitate the procurement of a divorce, to put an end to the marriage status, and absolve the parties from all their marital obligations, imposed upon them by the law of matrimony, cannot be enforced. "As the pol. icy of the law is to preserve intact the marriage, if possible, all requirements which have for their object or which contemplate a future separation between husband and wife are universally held illegal." 15 Am. & Eng. Ency. of Law (2d Ed.) 955. In 1 Bish. on Mar., Div. & Sep. § 1261, the author says: "Since the law makes the public a party to every suit for dissolution or separation, and forbids either form of divorce on the mutual agreement of the parties, or on the connivance of one of them to the other's wrong, any bargaining between them for a future separation or for the procuring of a divorce, or tending to the like end, being contrary to the law and legal policy, is void." In Seeley's Appeal, 56 Conn. 202, 14 Atl. 291, it was said: "The law requires husband and wife, in their relation to each other, to perform certain duties and refrain from committing certain wrongs. Taking note of hu

man infirmity, and of certain failure of some to do as it requires, or to refrain from doing what it forbids, it makes possible a method of release from the marriage contract upon proof that its purpose must entirely fail of accomplishment. Every decree of divorce must rest upon proof of such facts as have been by the Legislature declared to be sufficient to uphold it; not at all upon considerations as to rights of property; not at all upon the wishes or agreements of the parties. Courts will not enforce any contract which is the price of consent by one party to the marriage relation to the procurement of a divorce by the other. The court is entitled to know in every case whether the particular marriage tie in question is or is not of sufficient strength to bear the strain to which the law has subjected it." So in Adams v. Adams, 25 Minn. 72, it was stated: "The authorities are uniform in holding that any contract between the parties having for its object the dissolution of the marriage contract, or facilitating that result, such as an agreement by the defendant, in a pending action for divorce, to withdraw his or her opposition and to make no defense, is void, as contra bonos mores." Likewise, in Phillips v. Thorp, 10 Or. 494, it was said: "So strict and careful are courts in the administration of this justice, out of regard for the public morals and the general welfare of society, that they will esteem it their duty to interfere upon their own motion whenever it appears the dissolution is sought to be effected by the connivance or collusion of the parties; and all contrivances or agreements having for their object the termination of the marriage contract, or designed to facilitate or procure it, will be declared illegal and void, as against public policy." And again in the same case: "An unlawful agreement, it is said, can convey no rights in any court to either party, and will not be enforced, in law or in equity, in favor of one against the other of two persons equally culpable." Muckenburg v. Holler, 29 Ind. 139, 92 Am. Dec. 345, it was observed: "The law favors marriage, and cannot, therefore, sanction contracts intended to promote its dissolution, by lending itself to their enforcement. We know of no case in the books in which such an appeal to any court to compel the fulfillment of such a contract, or to award damages for its breach, has been successfully made." 1 Bish. Mar., Div. & Sep. §§ 76, 1312; 2 Am. & Eng. Ency. Law (2d Ed.) 127; Foote v. Nickerson, 70 N. H. 496, 48 Atl. 1088, 54 L. R. A. 554; Beard v. Beard, 65 Cal. 354, 4 Pac. 229; Wilde v. Wilde, 37 Neb. 891, 56 N. W. 724; Loveren v. Loveren, 106 Cal. 509, 39 Pac. 801; Hamilton v. Hamilton, 89 Ill. 349; Sayles v. Sayles, 21 N. H. 312, 53 Am. Dec. 208; Stoutenburg v. Lybrand, 13 Ohio St. 228; Baum v. Baum (Wis.) 85 N. W. 122, 53 L. R. A. 650, 83 Am. St. Rep. 854; Collins v. Collins (N. C.) 93 Am.

In

Dec. 606; Blank v. Nohl, 112 Mo. 159, 20 S. W. 477, 18 L. R. A. 350; Friedman v. Bierman, 43 Hun, 387; Simpson v. Simpson, 4 Dana, 140; Blank v. Nohl (Mo.) 19 S. W. 65; Belden v. Munger (Minn.) 80 Am. Dec. 407; McKennan v. Phillips (Pa.) 37 Am. Dec. 438.

It will thus be seen that, viewed and tested by the foregoing principles, the contract in controversy clearly contravenes the policy of the law and is void. Nor does it appear that the consummation of the transaction was the result of fair dealing. The conduct of the husband toward his wife was not such as to stamp it with fairness and justness. That the execution of the instrument by the wife was obtained through unfair advantage and unwarranted coercion on the part of the husband is a conclusion irresistible from an examination of the evidence. His consent and furnishing of the means for his wife to visit her parents; his selling out their property without her knowledge or assent, and leaving the state with the property in cash, while she was absent; his instructions to his attorneys to conceal his whereabouts; his keeping his wife in ignorance of the value of and amount obtained for the property; his threat that he would never return to the state while the one whom he had promised to love, protect, and support was in it; his grossly unequal division of the property, which, with the assistance of her father, they had accumulated during their married life-all these things, considered with the fact that his own intemperate habits, and consequent neglect of the duties he owed his wife, had brought on the estrangement then existing between them, savor much of the fraudulent, and militate strongly against the fairness and justice of the transaction which culminated in the contract. Not only the law, but a man's most sacred honor, as well as every principle of justice and equity, demands that he treat his wife at all times, and under all circumstances, respectfully, fairly, openly. Surely nothing less was due her. In that trying hour, when the cloud of disappointment and adversity was hanging over her, when she was to attach her signature to an instrument calculated to sever an alliance which had been made for life, she had a right to see her husband and talk with him face to face, and he had no right to conceal himself or anything relating to their affairs from her.

The record in this case is such as impels one to the thought that this is one of the sad, unfortunate cases where liquor, that prince of evil, blasted happy hearts and destroyed a happy home.

We are of the opinion that the appellant is not barred of her right of inheritance.

Having taken the view that the contract is without validity, it is unimportant to discuss the other points presented.

The judgment must be reversed, with costs, and the cause remanded to the court below, with directions to set aside the pres

ent findings of fact and the decree, and enter findings of fact and a decree in accordance herewith, in favor of the appellant. It is so ordered.

BASKIN, C. J., and MCCARTY, J., concur.

JOHNSTON et al. v. CITY OF ALBUQUERQUE et al.

(Supreme Court of New Mexico. Feb. 26, 1903.)

ADVERSE POSSESSION.

1. A person claiming ownership of a piece of land on the Albuquerque Town Grant, by means of the running of the statute of limitations, must have been in the actual, visible, exclusive, hostile, and continued possession thereof for the period of 10 years.

(Syllabus by the Court.)

Appeal from District Court, Bernalillo County; before Justice Baker.

Suit by Joseph T. Johnston and others against the city of Albuquerque and others. Decree for defendants, and plaintiffs appeal. Affirmed.

In the fall of 1887 one Martin went upon the tract of land in controversy, which comprises an area of between 70 and 80 acres, and which is situated within what was then commonly known as the "Town of Albuquerque Grant." This grant was afterwards confirmed to the city of Albuquerque, in trust, by act of Congress of February 18, 1901, 31 Stat. 796, c. 380. Shortly after entering on the land, Martin erected a fence, consisting of posts and wires, around the greater portion of the exterior boundaries of the tract, but a gap was left at the southwest corner of the land, about 600 feet wide, which has never been fenced. At the same time Martin built a small house near the southwest corner of the premises, in which he lived for two or three years, but moved away from it shortly before he died. At the same time he also built a small stable. In December, 1887, Martin and appellant Johnston entered into an agreement to become copartners and joint owners of the S. 1⁄2 S. W. 4 section 21, township 10 N., range 3 E. The greater portion of the land in controversy is included within this description. By the agreement each party was to pay one-half of the expenses for the management of the land and for improvements which they might make thereon, and, if either of them acquired a title to the land, then the one so acquiring it was to give the other a deed for one-half part of such land. These articles were filed for record in the office of the probate clerk of said county on May 6, 1893. In March, 1888, Martin filed in the office of the probate clerk of Bernalillo county a "notice of occupancy," so called, dated February 14, 1888, but which was unsigned and unacknowledged. This notice

contained a description by survey of the land claimed by him, and a statement of the improvements made thereon by him, and which consisted of a house 14 by 20 feet, and a barn 8 by 12 feet, and then continued: "Posts are set on all sides of the claim with two wires stretched on same except from cor. No. 1 to cor. No. 8, and from cor. No. 8 to cor. No. 7." This is a distance of 3,500 feet, where no fence was built at the time of the filing of the notice. The notice was filed under the provisions of what is now section 3753, Comp. Laws 1897. Martin returned the property for taxation and paid the taxes thereon for several years, but it was sold for the taxes of the year 1892. After Martin's death, the S. 2 S. W. 14 section 21 was assessed as the property of the "estate of W. J. Martin" for the year 1893, and under this assessment was sold to the appellant Johnston in the year 1894, and he received a tax-sale deed therefor in 1898. Appellant Johnston swears that he has paid the taxes on the land, but copies of the tax receipts are not in the record. In 1895, appellant Johnston received a quitclaim deed from certain persons claiming to be the heirs at law of John W. Martin, alias "Wesley J. Martin," for the S. 2 S. W. 4 section 21. It is not claimed that these persons ever occupied the land deeded.

After the death of Martin, and prior to the summer of 1894, Johnston rented the house to one Brown, who lived there two months. In the summer of 1894, Johnston and his family lived there "pretty near a month." Between that time and the removal of the house from the premises, in 1897 or 1898, the house was occupied by tenants of Johnston for the greater part of one summer, and by another man for two or three months. Before the removal of the house, the fence erected by Martin had practically disappeared. The wire had been stolen, and the posts had either been pulled out of the ground or chopped down and used for firewood. After the removal of the house, there is no evidence that Johnston was on the ground until about Christmas, 1900, when he discovered that the city of Albuquerque had been hauling away dirt for some length of time. Thereafter he notified the mayor of that city to haul no more dirt from said land, but the mayor told him that he (Johnston) did not own the land, and the city has since continued to haul as needed.

The evidence disclosed that ever since Martin first went on the land it has been open to the public; that the town cattle passed through and grazed on it at will; that any one who needed dirt had hauled it from the premises; that the land was put to no beneficial use by Martin or Johnston, save that part on which the house and barn stood, until the spring of 1901, when appellant Johnston leased a portion of the premises to J. W. Freeman, to be used for brickmaking. On April 29, 1901, Johnston demanded,

under the act of Congress of 1901, above referred to, a deed from the mayor of the city of Albuquerque for the S. 2 S. W. section 21, but that official declined to execute such instrument, on the ground that Johnston was not entitled thereto. On July Sth of the same year Johnston notified the proper authorities of the city of Albuquerque not to remove any more dirt from the premises, but, the city paying no attention to the notice, this suit was brought, a temporary injunction was denied, and the case came on for hearing on its merits, being tried by the judge. The judgment was given in favor of the city, without the appellees having introduced any evidence, and the cause was dismissed. From this judgment appellants prayed and were granted an appeal to this court.

The trial court made special findings of facts which support the judgment.

William B. Childers, for appellants. Summers Burkhart, for appellees.

MILLS, C. J. (after stating the facts). This is a suit brought by appellants to restrain the city of Albuquerque from trespassing upon and removing any soil, gravel, clay, or other substance from the piece of land in controversy. The prayer of the complaint also asks that the title of the appellant Johnston to said land be established and quieted against the city of Albuquerque.

Previous to the passage of the act of Congress of February 18, 1901, 31 Stat. 796, c. 380, which act is entitled "An act to confirm in trust to the city of Albuquerque, in the territory of New Mexico, the town of Albuquerque Grant, and for other purposes," the title to the land in question, which was within the limits of this grant, was in the United States, against whom the statute of limitations did not run. The act, however, quitclaimed to the city of Albuquerque said grant, in trust, for the benefit, among others, "of all persons, claiming title to their individual holdings of real estate at the time of the acquisition of New Mexico under the treaty of Guadalupe Hidalgo and their successors in interest, or who have been in open adverse possession for the period of ten years prior to the passage of this act." There was but a single issue before the learned court below when the cause was tried, to wit, had Johnston been in open, continuous, adverse possession of the land in question for the period of 10 years at any time before the date of the bringing of this suit (July 30, 1901), so as to acquire a title to the premises by prescription?

We take it that, under the act of Congress, the "open, adverse possession" necessary to acquire title by prescription to this land must be the same as would be required to have the statute run against real estate owned by a private individual. Nothing appears in the act of Congress to lead us to presume that any distinction was intended to be made, or that any less strictness was required to ac

quire title to this land by adverse possession, simply because it was conveyed by the national government to the city of Albuquerque, in trust, than if it had been so conveyed to a private individual. Indeed, the use of the word "open" in the act, before the words "adverse possession," would seem to mean, if it means anything, that the lawmaking power intended to add something to the possession required to obtain title by virtue of the statute of limitations, instead of taking anything away from it. Adverse possession of another's land is such a possession as, when accompanied by certain acts and circumstances, will vest title in the possessor. In all jurisdictions where the determination of what constituted adverse possession has arisen, the decisions and the text-books are unanimous in declaring that the possession must be actual, visible, exclusive, hostile, and continued during the time necessary to create a bar under a statute of limitations (1 Cyc. 981), which time is 10 years in the case at bar, as set out in the act of Congress of 1901, supra. Section 2, c. 63, p. 133, Sess. Laws 1899, amends somewhat our statute of limitations, but the change is not material to the determination of this case.

That an adverse claim to land may ripen into a perfect title by virtue of the statutes of limitations, it is primarily essential that the possession relied on be actual. This has been passed upon by the courts of upwards of 30 of the states of the Union, as well as by the federal courts. A collection of these cases can be found in 1 Cyc. 982.

Actual possession consists in exercising acts of dominion over it, and in making the ordinary use of it to which it is adapted, and in taking the profits of which it is susceptible. Webber v. Clarke, 74 Cal. 11, 15 Pac. 431; Barstow v. Newman, 34 Cal. 90. The law sets out no particular rules, where the statute of limitations does not prescribe them, which are necessary to constitute acts of dominion. Actual possession is a question compounded of law and fact. Draper v. Short, 25 Mo. 197, 69 Am. Dec. 462, and its determination must largely depend upon the situation of the parties, the size and extent of the land, and the purpose for which it is adapted. The only rule which is generally applicable is that the acts relied on to establish possession must always be as distinct as the character of the land reasonably admits of, and must be so exercised as to acquaint the owner, should he visit it, that a claim of ownership adverse to his title is being asserted. 1 Cyc. 985. Where adverse possession is sought to be shown by having the land fenced for the period prescribed by the statute of limitations, such fence must be a real and substantial one (Borel v. Rollins, 30 Cal. 408), and the land must be completely inclosed, either by natural objects or an artificial inclosure (Goodwin v. McCabe, 75 Cal. 584, 17 Pac. 705; East Hampton v. Kirk, 84 N. Y. 215, 38 Am. Rep. 505). The building of a

fence around land, and then allowing it in a short time to go to decay, so that it will not keep out live stock or trespassers, is not such a possession as will give title by reason of the statute of limitations.

By visible possession is meant that the true owner must have actual knowledge of the hostile claim, or the possession must be so open, visible, and notorious as to give notice to the world that the right of the true owner is invaded intentionally, and with the purpose to assert a claim adversely to his. 1 Cyc. 997.

The possession must be exclusive, that is, that the person who claims the property by reason of the workings of the statute of limitations, or those under whom he claims, must have had exclusive possession of it. When the occupation is in common with the public generally, it is not such exclusive possession as will constitute the basis of a title by adverse possession. 1 Cyc. 1025.

The possession at its inception must be hos tile or adverse to that of the true owner, or, although not hostile at its commencement, such acts must be done as to make it hostile, which must continue during the period of the running of the time of the statute of limitations. In order to perfect a title by adverse possession, such possession must continue for the entire period prescribed by the statute of limitations. Probst v. Presbyterian Church, 129 U. S. 190, 9 Sup. Ct. 263, 32 L. Ed. 642. Any break or interruption of the continuity of the possession will be fatal to the claim of the party setting up title by adverse possession (1 Cyc. 1000, and cases cited in note 48), but temporary vacancies in the occupation, caused by the substitution of one tenant for another, which vacancies are not longer than is reasonable in view of the character of the land, do not constitute interruptions of possession, such as would destroy the running of the statute (Hudgins v. Crow, 32 Ga. 367; Beasley v. Howell, 117 Ala. 499, 22 South. 989).

As heretofore stated, this cause was tried by the court without the intervention of a jury, and the court made findings of facts on which the judgment complained of was based. The findings appear to have been made principally at the suggestion of the attorney for the appellant, and no objection was made to them by the attorney for either party to this action at the time they were filed.

We do not think that the evidence shows that any of the five elements necessary to cause the statute of limitations to run were proved by the appellant on the trial below. Martin at first went on the land, believing it to be the property of the United States, as shown by his having filed the so-called "Notice of Possession," which, however, he did not sign, but which is introduced in evidence by the counsel for appellant. The only actual possession he had of the land was the small pieces on which the house and stable stood. The fence did not, when erected, inclose the entire tract of land, 600 feet or more

being at the very first left open. The fence was almost immediately allowed to go to decay, so that practically none of it remained. The land was for the greater part of the time used as a common pasturage for those who desired to graze their live stock thereon. After Martin moved away from the house in about the year 1892, it was occupied by appellant and his tenants for less than a year; its windows were boarded up, and finally it was moved away. During nearly all of the time since Martin first went on the land, those who desired to do so have gone on it, and have taken dirt and other substance from it at their pleasure.

From a careful examination of the entire record, we are of the opinion that the findings of facts made by the learned judge who tried the case below are amply sustained by the evidence, and that there is no error in the judgment entered thereon. The judgment of the court below is therefore affirmed, and it is so ordered.

McFIE and PARKER, JJ., concur. BAKER, J., having tried the case below, did not take part in this decision.

(11 N. M. 645)

ARMIJO et al. v. NEHER. (Supreme Court of New Mexico. Feb. 26, 1903.)

TENANCY IN COMMON-RENTS AND PROFITSLIABILITY TO ACCOUNT-LIMITATIONS-INTEPEST — CREDITS-TAXES - REPAIRS - IMPROVEMENTS.

1. An entry by a co-tenant claiming title under a deed purporting to convey the whole estate is a constructive ouster, and sufficient notice to start the statute of limitations as to his obligation to account to his co-tenants for rents and profits received by him.

2. Under Comp. Laws 1897, § 2550, providing that interest shall be allowed at 6 per cent. on money received to the use of another and retained without the owner's consent, where a co-tenant entered, under a deed purporting to convey the whole estate, and claimed the land adversely, he was liable for interest on his co-tenants' share of rents and profits received, notwithstanding his co-tenants' failure to demand the same.

3. In a suit for an accounting between cotenants, the tenant in possession, erroneously claiming the entire estate, was entitled to credit for taxes paid, where it did not appear that he had returned the property at more than its value, or in bad faith for the purpose of embarrassing his co-tenants' interest therein.

4. Where, in a suit between co-tenants for an accounting, there was no proof that repairs made by the tenant in possession were necessary, or that improvements made added to the rental or permanent value of the premises, no allowance could be made therefor.

Error to District Court, Bernalillo County; before Justice Crumpacker.

Suit by George K. Neher against Ambrosio Armijo and others. From a judgment in favor of plaintiff, defendants bring error. Reversed.

This cause was before this court upon appeal, and the judgment of the lower court

was affirmed. Neher v. Armijo, 66 Pac. 517. At that time the present plaintiffs in error sought to have this court review the action of the court below in holding adversely to their interests in some particulars, but this court declined to do so, they having taken no crossappeal. They thereupon sued out this writ of error, and bring the same before this court at this time.

This was a suit for partition brought by the defendant in error against the plaintiffs in error, and also seeking for a recovery against them for certain improvements erected by him upon the premises, and for certain repairs made and taxes paid by him. The plaintiffs in error filed a cross-complaint, seeking a recovery for rents and profits received by the defendant in error from the estate. The cross-complaint was filed by the plaintiffs in error on January 9, 1899. Recovery was had by plaintiffs in error for rents and profits accruing during a period of years, and extending down to August 6, 1896, the date of the institution of an ejectment proceeding by them against defendant in error for the possession of their interest in the premises. A portion of the recovery was had for rents and profits accruing more than four years prior to the filing of the cross-bill in this case. The defendant in error sought on the former appeal to review the action of the lower court in awarding to the plaintiffs in error any rents and profits accruing more than four years prior to the filing of their cross-complaint. Relief was denied by this court, for the reason that proper exception was not saved in the court below. The court below denied to plaintiffs in error interest on the rents and profits which they recovered, and of which they now complain. The defendant in error is now in position to invoke the statute of limitations against the recovery sought by plaintiffs in error for interest.

Neill B. Field, for plaintiffs in error. William B. Childers, or defendant in error.

PARKER, J. (after stating the foregoing facts). 1. The first question presented is as to when the statute of limitations begins to run against a co-tenant who seeks to recover nis share of the rents and profits of the common estate. It may be stated, generally, that the statute of limitations operates upon causes of action between co-tenants to the same extent as between persons not within the relation of co-tenancy. The difficulty arises in determining when the statute begins to run. In regard to the possession of the subject of co-tenancy, there is a presumption that the co-tenant is merely exercising the right which the law gives him, and this presumption must in some way be overcome before the possession becomes adverse and the statute of limitation is set in motion. Freeman, Coten. & Par. § 221. This presumption may be overcome in many ways, such as direct notice of adverse holding to the ousted tenant, demand and refusal to be let into possession or entry,