In re Estate of Duran

Decision Date07 March 2003
Docket NumberNo. 27,399.,27,399.
Citation66 P.3d 326,2003 NMSC 8,133 N.M. 553
PartiesIn the Matter of the ESTATE of Salome DURAN, deceased, Evilia Madrid and Cinesio Sanchez, Petitioners-Petitioners, v. Grace Rodriguez, personal representative, and Joe Gallegos, Respondents-Respondents.
CourtNew Mexico Supreme Court

Ruben Rodriguez, Santa Fe, NM, Edward F. Benavidez, Albuquerque, NM, for Petitioners.

Emery Law Firm, P.C., Kelan Emery, Taos, NM, for Respondents.


MINZNER, Justice.

{1} Petitioners Evilia Madrid and Cinesio Sanchez appeal from a memorandum opinion of the Court of Appeals affirming an adverse decision and order of the district court. See Madrid v. Rodriguez (In re Estate of Duran), No. 21,384 (N.M.Ct.App. Feb. 13, 2002). The district court ruled that Petitioners have no interest in a tract of real property claimed by the estate of their deceased brother Salome Duran, and that they therefore are not entitled to the remedy of a constructive trust, because Decedent had acquired title to all of the property through adverse possession. The Court of Appeals rejected Petitioners' arguments that Decedent's possession of the property had been as a cotenant and therefore was not the kind of possession the statute requires, and that he lacked good faith color of title, as required by NMSA 1978, § 37-1-22 (1973). We hold that the evidence at trial failed to support the estate's defense to Petitioners' motion for a constructive trust, based on a claim that Decedent acquired title to the tract by adverse possession. Two elements required by the statute are missing: hostile possession and color of title. We therefore reverse the district court and the Court of Appeals and remand for proceedings consistent with this Opinion.


{2} We take the following facts from the findings of the district court and the briefs of the parties. Macarita Sanchez, Petitioners' and Decedent's mother, owned the subject property at the time of her death in 1932. Her estate was never probated, but she was survived by five children, including Donaciana Duran Gallegos, age 22 at the time, Salome Duran, age 20 at the time, Felipe Duran, age 18 at the time, Evilia Duran Madrid, and Cinesio Sanchez. There is some discrepancy in the record as to the exact ages of Evilia and Cinesio, but they were both under age 14 at the time. Sometime between their mother's death and 1936, some or all of Macarita's children orally agreed to divide the subject property among themselves, into five equal parcels of approximately 2 1/4 acres each, with the eldest child taking the southernmost parcel, and succeeding parcels going to the remaining children in order of age, from south to north. Cinesio, the youngest of the siblings, and Evilia, the second youngest of the siblings, were minors at the time of this agreement.

{3} Taos County assessed the property in five parcels for taxation purposes according to the agreement between the siblings. In 1936, however, taxes on the subject property went unpaid. The County took the property due to this delinquency, and eventually conveyed it to the State of New Mexico in 1940. Two of the siblings, Evilia and Decedent, redeemed the 2 1/4 acre parcels previously assessed to them. Another party, Fortunato B. Martinez, purchased the parcel previously assessed to Donaciana from the State Tax Commission as well. An order was entered in 1973, Taos County Cause No. 4562-A, which set aside the tax deeds previously assessed to Felipe and Cinesio, because they contained insufficient legal descriptions.

{4} The district court found that Decedent had continuous and exclusive possession of the entire tract of land and paid all taxes for the property from 1945 until his death. Evidence was presented that all of the siblings entered into an agreement that Decedent could possess the property in exchange for paying the taxes. The district court did not state whether it accepted this evidence as true or not.

{5} Petitioners claim, and the district court found, that they attempted to confirm the Decedent was holding the property for their benefit. Although Decedent never outright told them that he claimed the property as his own, he did avoid answering their inquiries. After having possessed the property and having paid the taxes thereon for some 33 years, Decedent conveyed the property in joint tenancy through a deed to himself and his wife, Elizaida Duran, in 1978. This deed was filed in the Taos County public records in January 1978. Elizaida preceded Decedent in death. Decedent died on March 22, 1998.

{6} In his will, Decedent named his niece, Grace G. Rodriguez (Respondent), as his sole heir and personal representative of his estate. The probate court entered an order for informal probate of the will and appointed Respondent as personal representative on April 21, 1998. After Petitioners claimed an interest in a portion of the estate,1 by motion for a constructive trust in their favor, the probate court transferred this action to the district court for formal probate. The will includes a provision that recites Decedent owned in fee simple "a house and 11.18 acres situate in El Salto, Arroyo Seco, Taos County, New Mexico," which is the subject of this dispute.

{7} The Court of Appeals upheld the district court's ruling that Decedent had obtained title to the entire tract through adverse possession. Petitioners argued that the 1978 deed conveying the property from Decedent to Decedent and his wife could not constitute good faith color of title. The Court of Appeals disagreed, however, and concluded that the evidence did not compel a finding of bad faith or fraud on Decedent's part. Petitioners further argued that Decedent occupied the land permissively, and never communicated his hostile intent toward them as cotenants. The Court of Appeals agreed that Decedent never affirmatively gave notice of hostile intent, but concluded that this was not necessary, because the land had been partitioned and the siblings were not cotenants. We granted certiorari, and now resolve the appeal by opinion. We note the significance of the doctrine of adverse possession in clarifying title in New Mexico. See generally White, Koch, Kelley & McCarthy, Attorneys at Law & N.M. State Planning Office, Land Title Study 202-03 (1971) (recommending repeal of Section 23-1-22 and adoption of a proposed Real Property Limitations Act in order to liberalize the requirements for adverse possession).


{8} Our adverse possession statute, Section 37-1-22, sets forth several requirements that one must satisfy to make a successful claim. Specifically, "[a] party claiming ownership of land by adverse possession must prove by clear and convincing evidence continuous adverse possession for ten years under color of title, in good faith, and payment of taxes on the property during these years." Williams v. Howell, 108 N.M. 225, 227, 770 P.2d 870, 872 (1989). "Adverse possession laws are a valuable supplement to the recording acts because they operate to extinguish record defects and contribute to the quieting of titles." Land Title Study, supra, at 202; see also 16 Richard R. Powell, Powell on Real Property § 91.01[2], at 91-5 to 91-6 (Michael Allan Wolf ed., Rel. 89, 1999). Petitioners here only challenge two of the statutory elements. They claim that Decedent's possession was not hostile, but permissive, and that Decedent did not have color of title in good faith. We consider each in turn, and we conclude that under our statute and the case law interpreting that statute, both elements were lacking. Therefore, the district court erred in denying Petitioners' motion based on its conclusion that Respondent had established Decedent's title by adverse possession.

{9} Our analysis is informed by the unique framework of adverse possession law, incorporating both statutory and case law requirements:

[Adverse Possession] statutes are complemented and amplified by a large body of case law that elaborates on the kind of possession by another that is sufficient to cause the statutory period to begin to run, and to continue running, against the true owner. Thus, the law of adverse possession is a synthesis of statutory and decisional law.

16 Powell, supra, § 91.01[1], at 91-4. Our analysis is also informed by the unique nature of our statute, which requires "color of title" as well as "good faith."


{10} The rule as to notice of hostile possession is different as between cotenants than it is as between strangers. See generally W.W. Allen, Annotation, Adverse Possession Between Cotenants, 82 A.L.R.2d 5, 22-24 (1962) (discussing the requirement of knowledge or notice). In the typical adverse possession case, where the claimant has no legal title to the property whatsoever, that person is not required to show that he or she expressly informed the property owner of his or her adverse intent. Rather, the length and quality of the possession serve as notice. See 16 Powell, supra, §§ 91.01[2], at 91-7, 91.01[4], at 91-11. If the parties are cotenants of the property, however, mere silence regarding hostile intent will not suffice. We apply a strong presumption against a cotenant's claim of hostile intent toward the other cotenants. Apodaca v. Hernandez, 61 N.M. 449, 454, 302 P.2d 177, 180 (1956). Further, we have held that:

Where possession is consistent with the rights of owners of record title, nothing but clear, unequivocal and notorious disclaimer and disavowal will render it adverse. There must be something which amounts to an ouster, either actual notice or acts and conduct that will clearly indicate that the original permissive use has changed to one of an adverse character.

Prince v. Charles Ilfeld Co., 72 N.M. 351, 359, 383 P.2d 827, 832 (1963). It is therefore critical to our analysis that we first determine whether Decedent and Petitioners were cotenants of the property.

{11} The district court determined that the oral partition agreement between the siblings did not itself...

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22 cases
  • Morris v. Brandenburg
    • United States
    • Court of Appeals of New Mexico
    • 11 Agosto 2015
    ...right asserted without any deference to the district court's conclusions on the issue. In re Estate of Duran, 2003–NMSC–008, ¶ 14, 133 N.M. 553, 66 P.3d 326 (explaining that the appellate court is not bound by district court's legal conclusions and “may independently draw [its] own conclusi......
  • King v. Estate of Gilbreath
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    • U.S. District Court — District of New Mexico
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    ...and amplified" by case law, and is a synthesis of statutory and decisional law. In re Estate of Duran , 2003-NMSC-008, ¶ 9, 133 N.M. 553, 66 P.3d 326, 330. A party claiming ownership by adverse possession must prove, by clear and convincing evidence, actual and visible appropriation, under ......
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    • 25 Septiembre 2003
    ...the type and extent of knowledge required varies, depending on the context. See, e.g., In re Estate of Duran, 2003-NMSC-008, ¶ 17, 133 N.M. 553, 66 P.3d 326 (stating that, generally, notice of an adverse possession claim between cotenants must be an open and unequivocal denial of the title ......
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