Fidel v. Venner

• Decision Date: 12 June 1930
• Docket Number: No. 3373.,3373.
• Citation: 289 P. 803,35 N.M. 45
• Parties: FIDEL et al.v.VENNER et al.
• Court: New Mexico Supreme Court

35 N.M. 45

289 P. 803

FIDEL et al.

v.VENNER et al.

No. 3373.

Supreme Court of New Mexico.

June 12, 1930.

Syllabus by the Court.

Chapter 84, Laws 1915 (Comp. 1929, § 68-403), does not deprive husband of management and control of real estate of community, except in the matter of executing deeds or mortgages thereon, in which case the wife must join.

Syllabus by the Court.

Lease of community realty for three years with option to lessee to renew for five years additional, executed by husband alone, is valid.

Additional Syllabus by Editorial Staff.

Appeal from District Court, Valencia County; Owen, Judge.

Suit by A. H. Fidel and another against Roy H. Venner and another. From the judgment, plaintiffs appeal.

Affirmed, and cause remanded.

Lease executed by husband alone, covering community property, for three-year period, with option to lessee to renew for five years additional, held valid. Comp.St.1929, § 68-403.

Mechem & Veleacott, of Albuquerque, for appellants.

Downer & Keleher and Claud S. Mann, all of Albuquerque, for appellees.

SIMMS, J.

This case involves the sole question of whether a lease on community real estate, for a term of three years, with an option for five years more, executed by the husband alone, is valid without the signature of the wife.

[1] 1. Chapter 84, Laws 1915 (Comp. 1929, 68-403, as amended), reads as follows:

“ Power of the Husband over Community Property. The husband has the management and control of the personal property of the community, and during coverture the husband shall have the sole power of disposition of the personal property of the community, other than testamentary, as he has of his separate estate; but the husband and wife must join in all deeds and mortgages affecting real estate; provided, that either husband or wife may convey or mortgage separate property without the other joining in such conveyance or mortgage; and, provided, further, that any transfer or conveyance attempted to be made of the real property of the community by either husband or wife alone shall be void and of no effect.”

Appellants contend, first, that the effect of the statute is to deny to the husband the right to manage the real estate of the community or to act as agent in regard to it. The argument is that, since the prior statute, section 16, c. 37, Laws 1907 (section 2766, Code 1915), gave the husband the management of both the real and personal property of the community, the subsequent enactment served to curtail that power of management by confining it to the personal property of the community. But both statutes must be construed in the light of the historical background which surrounds the community property system. It was unknown to the common law, but comes to us from the civil law of Mexico and Spain. Before his power was curtailed by statute, the husband enjoyed the control and management of both real and personal property of the community and had the power of alienation without the wife's joinder. Section 16, c. 37, Laws of 1907, in so far as it affirms the power of the husband to manage and control the community property, both real and personal, is declaratory of the pre-existing law. And chapter 84, Laws 1915, is also a recognition of the power of the husband over the personal property of the spouses, coupled with a restriction against sale or mortgaging of real estate without the wife's joining. There is nothing in the act itself which in terms forbids the husband to manage and control the realty of the community, except in the two instances mentioned. It would indeed be an anomalous situation if the community, composed of husband and wife, could have no head or agent in the transaction of business. Whatever inroads may have been made by modern ideas upon the time-honored position of the husband as lord and master of the family, the law still regards him as the head of the community and provides for his removal and the substitution of the wife under certain circumstances. Comp. 1929, § 68-404. He alone has power to bind the community for debt. Morris v. Waring, 22 N. M. 175, 159 P. 1002. Title taken in his name is presumptively community title. The converse is true of the wife. Comp. 1929, § 68-401. We do not believe that by restricting the husband's power to execute a deed or mortgage without the wife's joining it was the intention of the Legislature to take from him the right and power to manage and control the real estate of the community in all other respects. Baca v. Belen, 30 N. M. 541, 240 P. 803.

We find nothing in...