(No. 2772.

Jan. 15, 1924.

Rehearing Denied Feb. 18, 1924.)

#### ROCKY CLIFF COAL MINING CO. v. KITCHEN.

SYLLABUS BY THE COURT.

1. Findings of fact -which are supported by substantial evidence will not be disturbed on appeal.

2. Evidence reviewed, and held, that the findiings ’of fact are supported by substantial evidence.

3. A grantor in a warranty deed is estopped to question the sufficiency thereof to establish a prima facie title in his grantee, as to permit him to do so would allow him to question the title which he has conveyed with covenants of warranty.

Appeal from District Court, McKinley County; Hol-loman, Judge.

Suit by the Rocky Cliff Coal Mining Company against Peter Kitchen. From a judgment for plaintiff, defendant appeals.

Affirmed.

E. W. Dobson, of Albuquerque, for appellant.

A. M. Edwards, of Santa Fe, for appellee.

OPINION OF THE COURT.

BRATTON, J.

The appellee instituted this suit to recover $12,000 as actual and $8,000 as punitive damages, due by reason of the appellant having wrong*396fully, willfully, fraudulently, and maliciously taken and removed from certain described lands owned by tbe appellee 12,000 percb of rock, of tbe alleged value of #1 per percb and charged to bave been so removed between January 1, 1915, and August 1, 1919. By an amended answer tbe appellant denied tbe appellee’s cause of action, and pleaded by way of offset and counterclaim a certain unpaid judgment in tbe sum of $7,819.73 rendered in bis favor and against tbe ap-pellee on February 26, 1921.

the cause was tried before- the court. without a jury and the court found that between the dates charged in the complaint, the appellant bad removed from the premises in question, 7,800 percb of rock belonging to the appellee of the value of twenty cents per percb, aggregating $1,560, and the judgment for such sum was rendered with the provision that it should operate as a credit upon the above mentioned judgment owned by the appellant.

[1, 2] 1. the first contention made by the appellant involves the sufficiency of the evidence to support the finding of the trial court that the appellant removed 7,800 percb of rock from the premises within the dates alleged. We bave carefully and repeatedly read the entire record, and bave reached the conclusion that there is substantial evidence to support such finding. A mining engineer, whose competency is nor questioned, went upon the premises during October, 1919, and made a survey of the quarries from which the rock bad been removed and testified that in bis opinion 7,999.3 percb bad been taken out. the caretaker of the premises testified that the appellant, or those directed by him, bad removed all the rock that bad been taken out except 100 percb for which credit was properly given. This caretaker further testified that be showed the engineer the place from which such rock bad been removed, and that the appellant, or those under bis direction, so removed such rock between 5 and 6 years prior to the date of the trial which was bad on November 21, 1921 (thus bringing the time *397witbin tbe dates charged in the complaint), and that no rock had been removed after August 1, 1919, and prior to the time the survey was made by the engineer ; so that, according to this testimony, the appellant, or those under his direction, removed the rock within the times specified in the complaint. In addition, Mrs. Bertha Canavan testified that she demanded payment for the rock in question, and that the appellant declined to pay for the same because he claimed the appellee owed him more than the price such rock came to. He virtually admitted, according to her testimony, that he had taken the rock, but he seemed to want to abut accounts. It is further contended that the engineer surveyed and measured several quarries, and based his esimate on all of them combined, while the evidence shows that the rock in question was taken from one quarry alone. We think this contention untenable, as the undisputed evidence from the caretaker is that he showed the engineer just where the rock had been taken and the testimony of the engineer is that he measured where shown by the caretaker. We think there is substantial evidence in the record to sustain the findings of the trial court; in fact, the findings are sustained by the undisputed testimony, as the appellant offered no evidence whatever, but rested his case when the appellee rested. The assignment must therefore be denied.

[3] 2. It is suggested in appellant’s brief, although not seriously argued, and no authorities are cited to sustain the same, that the evidence of the appellee was insufficient to sustain the finding of the lower court that the appellee was the owner in fee simple of the lands in question at the material times involved in the suit. Such title was proven by a warranty deed executed by the appellant to appellee, dated July 15, 1910, and recorded on September 20, 1917. It therefore appears that the title relied upon by the appellee as being prima facie was deraigned from the appellant himself, and he certainly is estopped to question its sufficiency. To permit him to do so would allow him to question *398tbe title, which he has conveyed with covenants of warranty. This he is estopped to do.

There being no error in the record, the judgment must be affirmed; and it is so ordered.

PARKER, C. J., and BOTTS, J., concur.