{
  "id": 2806790,
  "name": "Clara ARRETCHE, Executrix of the Estate of Filberto Arretche, Deceased, and the Grants State Bank, Trustee, Plaintiffs-Appellees, v. Benigno GRIEGO and Lucinda Griego, his wife, Defendants-Appellants",
  "name_abbreviation": "Arretche v. Griego",
  "decision_date": "1967-01-16",
  "docket_number": "No. 8088",
  "first_page": "364",
  "last_page": "368",
  "citations": [
    {
      "type": "official",
      "cite": "77 N.M. 364"
    },
    {
      "type": "parallel",
      "cite": "423 P.2d 407"
    }
  ],
  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [
    {
      "cite": "75 N.M. 29",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5373662
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/75/0029-01"
      ]
    },
    {
      "cite": "76 N.M. 420",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        8502705
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/76/0420-01"
      ]
    },
    {
      "cite": "44 N.M. 275",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        1566936
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/44/0275-01"
      ]
    },
    {
      "cite": "61 N.M. 196",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5317595
      ],
      "weight": 3,
      "opinion_index": 0,
      "case_paths": [
        "/nm/61/0196-01"
      ]
    },
    {
      "cite": "67 N.M. 439",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2714441
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/67/0439-01"
      ]
    },
    {
      "cite": "75 N.M. 228",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5371450
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/75/0228-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 485,
    "char_count": 9453,
    "ocr_confidence": 0.674,
    "pagerank": {
      "raw": 8.357403634365073e-08,
      "percentile": 0.4813319232125116
    },
    "sha256": "093ddc4eefcb472e3e268e8c3c1f43a3265e341ee429a32c8fd249e9ed01e102",
    "simhash": "1:f3af2e1c94ae1ccd",
    "word_count": 1584
  },
  "last_updated": "2023-07-14T20:38:38.028708+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "MOISE and CARMODY, JJ., concur."
    ],
    "parties": [
      "Clara ARRETCHE, Executrix of the Estate of Filberto Arretche, Deceased, and the Grants State Bank, Trustee, Plaintiffs-Appellees, v. Benigno GRIEGO and Lucinda Griego, his wife, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "OPINION\nJOE W. WOOD, Judge, Court \u2022 .of Appeals.\nDefendants\u2019 appeal involves a review of the evidence and requires a decision on two issues: (1) whether there is evidence to support findings that no gift was made and that a deed of trust was not released and (2) whether under the evidence the trial court -properly refused to find that a settlement agreement had been made.\nWe hold that there is substantial evidence to support the findings of no gift and no release of the deed of trust. We also hold that the trial court could properly refuse to find that there had been a settlement agreement. These holdings make it unnecessary to decide the other questions presented, one of which is whether decedent was mentally competent. For the purposes of this appeal, we have assumed that decedent was mentally competent.\nDefendants executed a promissory note to Filberto Arretche and secured payment of the note by a deed of trust on certain real estate. This transaction was a consolidation of two prior notes and mortgages. The note was not paid when due. The executrix of Mr. Arretche\u2019s estate and the trustee under the deed of trust sued to collect the note and to foreclose the deed of trust.\nDefendants contend that Mr. Arretche made a gift to them of the indebtedness represented by the note and that the gift is evidenced by a release. As an alternative defense they claim an agreement with Mr. Arretche to settle the indebtedness for an amount less than the balance due on the note.\nThe trial court found that no gift had been made to the defendants of the indebtedness due under the note and that the deed of trust had not been released or discharged. Defendants assert that \u201coverwhelming\u201d evidence shows to the contrary. Admittedly, the evidence is conflicting. However, on appellate review, the evidence is viewed in a light most favorable to support the court\u2019s findings. Beyer v. Montoya, 75 N.M. 228, 402 P.2d 960. This rule of appellate review applies to findings concerning gifts. Lindley v. Lindley, 67 N.M. 439, 356 P.2d 455.\nThe circumstances of the alleged gift and the claimed settlement agreement are interrelated. The events occurred as follows:\n,. In October 1963 defendants made unsuccessful efforts to raise the money with which to pay the note. In that same month Mr. Arretche refused to accept $10,000 and a- note for $7,500 secured by a second mortgage. He wanted \u201call his money.\u201d\nIn \u2022 November 1963 Mr. Arretche wrote to his attorney-asking advice as to what to do. His attorney made formal demand for payment on November 22, 1963.\nOn December 13, 1963, Mr; \u25a0 Griego contacted the attorney and was referred to Mr. Arretche. \u2022 Mr. Arretche informed Mr. Griego that whatever his' attorney did was all\u2019right with him.\nSometime in December defendants made verbal application to the First National Bank in Grants for a loan of $14,000 secured by a first mortgage. On December 24, 1963, the bank approved the loan.\nAccording to Mr. Griego, on December 26, 1963, Mr. Arretche informed him that he wanted to release the deed of trust to defendants.\nOn December 27, 1963, defendants signed the note and mortgage in connection with the loan from the First National Bank.\nOn December 28, 1963, a release of the deed of trust, properly filled in, was purportedly signed by Mr. Arretche.\nOn January 2, 1964, Mr. Arretche was hospitalized for a cerebral vascular accident. He went home on January 5, 1964.\nOn January 8, 1964, he was rehospitalized, remaining in the hospital until his death on January 21, 1964.\nOn January 30, 1964, Mr. Griego told attorney Hale (who prepared the loan papers for the First National Bank) that he had an agreement with Mr. Arretche to release everything without payment.\nBetween January 30 and February 3, 1964, Mr. Griego exhibited to attorney Hale a release of mortgage form signed by Mr. Arretche and bearing the signature of a witness. The release was not filled in nor dated.\nOn February 3; 1964, Mr. Griego informed ' attorney Hale to \u201ccancel\u201d the loan with the bank.\nTwo of the elements of a valid gift are donative intent and a present gift fully executed. Lusk v. Daugherty, 61 N.M. 196, 297 P.2d 333. Mr. Arretche\u2019s statements and actions antedating the alleged gift are relevant and material on the issue of donative intent. Lusk v. Daugherty, supra. His statements and actions through December 13, 1963, have been outlined above.\nMr. Gunderson, a director of the bank, spoke with Mr. Arretche concerning Mr. Griego\u2019s loan application. The date of the conversation is not clearly established, but it was prior to December 26, 1963. On-the date of that conversation, Mr. Arretche was not \u201cin a mood to give anything to anybody.\u201d\nDefendants\u2019 actions in signing the papers for the new bank loan on December 27, 1963, are inconsistent with a verbal gift on December 26, 1963, of the indebtedness against which the new loan was to be applied.\nDefendants\u2019 exhibition of a signed, 'but blank, release on or after January 30, 1964, is inconsistent with an executed release \u2022on December 28, 1963.\nWe have not recited all the evidence. The above evidence is substantial and' Supports the finding -of the trial court that no gift had been made and that the deed of trust had not been released or discharged.\nThe trial court refused to find that Mr. Arretche agreed to accept \u00e1 lesser sum in settlement of defendants\u2019 indebtedness. Defendants claim that evidence of an agreement to accept a lesser sum is uncontradicted.\n. It is undisputed that defendants applied for a loan of $14,000, that the bank agreed to the loan on the condition it was secured by a first mortgage and that Mr. Gunderson talked to Mr. Arretche about the loan. Mr. Griego testified that Mr. Arretche agreed to accept a lesser amount in settlement. Apart from Mr. Griego, there is no testimony that Mr. Arretche agreed to accept a lesser amount.\nThe purpose of Mr. Gunderson\u2019s conversation with Mr. Arretche was \u201cto discuss with him how the procedure worked in closing the loan.\u201d Mr. -Gunderson was protecting the bank\u2019s interest. The conversation took place after the loan ha.d been approved. Mr. Gunderson did not testify that Mr. Arretche agreed to a lesser sum in settlement..\nMr. Burns, the official'who handled the loan for the bank, \u201cbelieved\u201d that Mr. Arretche approved the transaction after the conversation with Mr. .Gunderson. Mr. Burns- did not, in fact could not, speak with Mr.-Arretche about the loan since he spoke no Spanish and Mr. Arretche spoke no English,\nMr. Griego testified that Mr. Arretche agreed to accept $10,000 in December. He had previously rejected this same amount plus a second mortgage to secure an additional $7,500.\nThe bank officials understood that $12,000 of the $14,000 loan was to go to Mr. Arretche. Mr. Griego testified to $10,000. The bank officials understood that $12,000 would \u201cpay off\u201d the indebtedness. All their information about the indebtedness came from Mr. Griego. It was at a later date that Mr. Griego informed them that the balance on the note exceeded $17,000.\nMr. Iriart was a friend and former employee of Mr. Arretche. Two or three weeks before Christmas Mr. Griego asked Mr. Iriart \u201cwould we make him [Arretche] sign those papers\u2014make him take that money.\u201d This was in reference to Mr. Griego\u2019s efforts to effect a settlement for a lesser amount.\nMr. Arretche was indignant about defendants\u2019 failure to pay. It was difficult to talk to him about the defendants because he would get so upset. Mr. Arretche was elderly, wanted to return to his native France, and felt that the defendants were preventing his return.\nThere is evidence that Mr. Arretche was having difficulty with his memory. When Mr. Griego talked to Mr. Arretche about accepting a lesser amount in settlement, Mr. Griego discussed the indebtedness in terms of the original loans\u2014not the consolidated note.\nBoth Mr. Gunderson and Mr. Griego informed Mr. Arretche that he would have to sign a \u201crelease\u201d in order to get \u201chis money.\u201d\nThe above evidence, considered with Mr. Arretche\u2019s desire for \u201call his money\u201d in October and his reliance on his attorney in December, shows suspicious circumstances surrounding the transaction testified to by Mr. Griego. In such a situation, the trial court could deny full credence to Mr. Griego\u2019s testimony. Medler v. Henry, 44 N.M. 275, 101 P.2d 398; Bell v. Kenneth P. Thompson Co., 76 N.M. 420, 415 P.2d 546. This court will not substitute its judgment for that of the trial court as to the credibility of the witness. Beacon Supply Co. v. American Fiber Corp., 75 N.M. 29, 399 P.2d 927; Bell v. Kenneth P. Thompson Co., supra.\nThe claimed settlement agreement was an affirmative defense. Section 21\u20141\u2014 1(8) (c), N.M.S.A.1953. Defendants had the burden of proof on this defense. At the close of the evidence, the trial court ruled that the proof was insufficient. Denial of the request to find a settlement agreement was proper.\nThe judgment is affirmed. It is so ordered. .\nMOISE and CARMODY, JJ., concur.",
        "type": "majority",
        "author": "JOE W. WOOD, Judge, Court \u2022 .of Appeals."
      }
    ],
    "attorneys": [
      "Matteucci, Gutierrez, Franchini & Cal-kins, Albuquerque, for appellants.",
      "Modrall, Seymour, Sperling, Roehl & Harris, Leland S. Sedberry, Albuquerque, for appellees."
    ],
    "corrections": "",
    "head_matter": "423 P.2d 407\nClara ARRETCHE, Executrix of the Estate of Filberto Arretche, Deceased, and the Grants State Bank, Trustee, Plaintiffs-Appellees, v. Benigno GRIEGO and Lucinda Griego, his wife, Defendants-Appellants.\nNo. 8088.\nSupreme Court of New Mexico.\nJan. 16, 1967.\nRehearing Denied Feb. 8, 1967.\nMatteucci, Gutierrez, Franchini & Cal-kins, Albuquerque, for appellants.\nModrall, Seymour, Sperling, Roehl & Harris, Leland S. Sedberry, Albuquerque, for appellees."
  },
  "file_name": "0364-01",
  "first_page_order": 396,
  "last_page_order": 400
}