Mcdonald v. Lambert

Citation85 P.2d 78,43 N.M. 27
Decision Date05 November 1938
Docket NumberNo. 4380.,4380.
PartiesMcDONALDv.LAMBERT et al.
CourtSupreme Court of New Mexico

OPINION TEXT STARTS HERE

Appeal from District Court, Lea County; James B. McGhee, Judge.

Suit by Alleen McDonald against Coke L. Lambert and others to establish in her title to an undivided one-half interest in certain land. From a decree in favor of the defendant, the plaintiff appeals.

Decree affirmed.

Generally, the adoption of a statute from another state includes its prior construction by the courts of that state, but the rule is not absolute, though the presumption is strong that the Legislature did so intend.

Lake J. Frazier, of Roswell, for appellant.

Margaret Neal and Tom W. Neal, both of Santa Fé, and J. D. Atwood, of Roswell, for appellees.

BRICE, Justice.

This suit was brought by appellant to establish in her, title to an undivided one-half interest in three hundred and twenty acres of land, the legal title to which is in the appellee. The parties had been husband and wife, and were divorced without a settlement of their property interests.

The principal question, and the only one necessary to a decision, is whether at the time the parties were divorced the real estate in question was community property.

On the 14th of February, 1916, the appellee filed a United States homestead entry on the land in question, and thereafter complied with the law with reference to settlement, improvements, and residence, until appellee and appellant were married, in January, 1917. The parties thereafter made their home on the land, until it was subject to patent. The necessary proof was made, and on February 5, 1920, the land was patented to appellee.

[1] Under these facts the land is the separate property of the appellee. We held in Citizens' National Bank v. Ruley, 29 N. M. 662, 226 P. 416, that the title of an entryman to a United States homestead entry, upon receiving patent, dates from his settlement upon the land. As the parties were not married at the time the appellee made his entry and settlement, the land did not become community property. The Supreme Court of Louisiana held otherwise in Doucet v. Fontenot, 165 La. 458, 115 So. 655; though the Louisiana court seems to be alone in this holding. Card v. Cerini, 86 Wash. 419, 150 P. 610; In re Lamb's Estate, 95 Cal. 397, 30 P. 568; Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66.

The evidence in support of the claim that the property belongs to the community was the following testimony of appellant:

“Q. Did you have any conversation with him about coming out to live on this claim? A. Yes, sir.

“Q. What was that conversation? A. All the time we were engaged we talked of this as being our future home. It was discussed that if I came out there to live, helped look after it, it would be part mine.

“Q. Did you come out then and live on the homestead with him? A. Yes, sir.

“Q. What was the condition of the homestead when you got there? A. Well, we lived first in a dug-out, and then we went from that to a little one-room house and continued in this little one-room house under lots of difficulties and hardships.”

It is claimed that the alleged contract is authorized by the terms of the following statutes:

“Husband and wife may make contracts. Either husband or wife may enter into any engagement or transaction with the other, or with any other person respecting property, which either might, if unmarried; subject, in transactions between themselves, to the general rules of common law which control the actions of persons occupying confidential relations with each other.” Sec. 68-201, N.M.Sts.Ann.1929.

“A husband and wife cannot by any contract with each other alter their legal relations, except of their property, and except that they may agree in writing, to an immediate separation, and may make provisions for the support of either of them and of their children during their separation.” Sec. 68-510, N.M.Sts.Ann.1929.

“Consideration for agreement of separation. The mutual consent of the parties is a sufficient consideration for such an agreement as is mentioned in the last section.” Sec. 68-511, N.M.Sts.Ann.1929.

By Ch. 37, N.M.L.1907, this state adopted certain California statutes regarding the relation and property rights of husband and wife; among which were the statutes quoted. It is said that we are bound by the construction placed upon these statutes by the courts of California, hereafter to be noted.

[2] It is a general rule, based upon a presumed intent, that the adoption of a statute from another state includes its prior construction by the courts of that state, Marlin v. Lewallen, 276 U.S. 58, 48 S.Ct. 248, 72 L.Ed. 467, and the presumption is strong that the legislature did so intend, Union Oil Associates v. Johnson, 2 Cal.2d 727, 43 P.2d 291, 98 A.L.R. 1499, but the rule is not absolute. Kraus v. Chicago, B. & Q. R. Co., 8 Cir., 16 F.2d 79; Phoenix Title & Trust Co. v. Old Dominion Co., 31 Ariz. 324, 253 P. 435, 59 A.L.R. 625; O'Malley Lumber Co. v. Martin, 45 Ariz. 349, 43 P.2d 200; In re Waldron's Estate, 84 Colo. 1, 267 P. 191; State v. Callow, 78 Mont. 308, 254 P. 187; Hard v. Depaoli, 56 Nev. 19, 41 P.2d 1054; State v. Nelson, 58 S.D. 562, 237 N.W. 766, 76 A.L.R. 1226; State v. Olsen, 76 Utah 181, 289 P. 92; 59 C.J. title Statutes Secs. 627 and 628.

In Palmer v. Farmington, 25 N.M. 145, 179 P. 227, we stated [page 230]:

“This statute was taken, as stated, from the state of Arkansas, and this identical section appears as section 5322, Sandel & Hill's Dig.1894. The rule is that where a statute is adopted from another state, and such statute has previously been construed by the courts of such state, the statute is deemed, as a general rule, to have been adopted with the construction so given to it by the courts of the state from which it was taken. Lewis' Sutherland's Stat. Const. § 404. In the case of Dow v. Simpson, 17 N.M. 357, 132 P. 568, this court said:

“‘As our statute, however, was taken from the state of Washington verbatim, it is our duty to give to it the judicial construction placed upon it by the Washington court, as the presumption is that our Legislature, in adopting it, also intended to adopt the judicial construction placed upon it by the courts of that state.”

In the case of Armijo v. Armijo, 4 Gild. 57, 13 P. 92, the court said [page 95]: “It is a familiar rule of law, that where one state or territory adopts a statute in force at that time in such state or territory, it also adopts the construction by the courts of such state or territory, unless for some good reason the courts of the state or territory adopting the statute should see proper to refuse to follow such decisions as sound interpretations of the statute.”

[3] It will not be presumed that the legislature intended to adopt a construction not in accord with sound reasoning, common sense (Phoenix Title & Trust Co. v. Old Dominion Co., supra; State v. Callow, supra), or that would render the statute inconsistent with other laws intended to be retained, or the public policy of the adopting state. Beals v. Ares, 25 N.M. 459, 185 P. 780.

In the Beals Case we construed the statutes adopted from California by Ch. 37, N.M.L.1907, and refused to follow the construction of the California courts, which had held that the community property and its increase belonged to the husband; that the wife had a “mere expectancy,” which did not amount to a present estate or interest therein. Spreckels v. Spreckels, 116 Cal. 339, 48 P. 228, 36 L.R.A. 497, 58 Am. St.Rep. 170; In re Brix' Estate, 181 Cal. 667, 186 P. 135. This court held that the wife's interest in community property was present, vested and equal to that of the husband; that the construction of the statute by the California courts, if followed, would render them inconsistent with other New Mexico statutes. In 1927 the legislature of California amended its laws with reference to community property so that the wife now has a present, vested interest therein, equal to that of the husband.

[4][5] All property owned by either husband or wife before marriage, and that acquired after, by gift, bequest, devise or descent, with its rents, issues and profits, is his or her separate property, and all other property acquired during marriage by the husband, wife or both, is community property. The status of such property is fixed by law as of the time of its acquisition and remains so until changed by means, and in a manner, authorized by law.

The Supreme Court of California, in Yoakam v. Kingery, 126 Cal. 30, 58 P. 324, decided in 1899, in construing statutes identical with our sections numbered 68-201 and 68-510, held that a husband and wife could alter the legal relations as to property so as to transmute separate into community property. That court said [page 325]: “Husband and wife may, by contract with each other, ‘alter their legal relations as to property’ (Civ.Code, §§ 158, 159); and we see no reason to doubt that the contract of Yoakam and wife was sufficient to transmute the separate estate of either of them into community property, if it was properly executed. Counsel for defendant maintain, however, that such contract rested in parol, whereas a change so radical in the character of the estate in the land could be effected by writing only. But it is to be inferred from the record that the agreement of Yoakam and wife was a written contract and duly executed. The finding is that they ‘agreed’ that the property standing in the name of either of them was community property. In McDonald v. Association, 51 Cal. 210, a finding that a contract to sell real estate had been made was held to import that it had been made in writing; and the decision in Lewis v. Kelton, 58 Cal. 303, was to very similar effect. We must hold that the finding here of the agreement between plaintiff and his wife means a valid and effectual agreement, not one invalid or void.”

Subsequent decisions of the California courts have...

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