Jenkins v. Huntsinger

• Decision Date: 16 March 1942
• Docket Number: No. 4647.,4647.
• Citation: 46 N.M. 168,125 P.2d 327
• Parties: JENKINSv.HUNTSINGER et al.
• Court: New Mexico Supreme Court

46 N.M. 168

125 P.2d 327

JENKINS

v.HUNTSINGER et al.

No. 4647.

Supreme Court of New Mexico.

March 16, 1942.Rehearing Denied May 15, 1942.

Appeal from District Court, Lincoln County; Numa C. Frenger, Judge.

Suit by J. R. Jenkins against A. E. Huntsinger and others to quiet title and to remove a deed made to the defendant Huntsinger, as a cloud upon his title. From an adverse judgment, the plaintiff appeals.

Affirmed.

Reformation of an instrument conveying community property may not be had where deed was not in substantial compliance with statutory requirement that husband and wife join in deed affecting community property. Comp.St.1929, § 68-403.

A. H. Hudspeth and John E. Hall, both of Carrizozo, for appellant.

Reed Holloman, of Santa Fe, and R. M. Krannawitter, of Vaughn, for appellees.

MABRY, Justice.

There is involved in this appeal the title to an undivided one half interest in a section of grazing land in Lincoln County. While there are a number of errors assigned by appellant, the principal contention revolves about the question of the effect of a deed given by a married man to community property in which the wife did not join, and involves an interpretation of Chap. 84, Laws of 1915, Sec. 68-403, Comp.St.1929.

One George Roberts, a married man, attempted to sell and convey to one J. R. Jenkins, appellant, by warranty deed, the land in question for a consideration of $900, one half in cash, the balance secured by a mortgage on the land; thereafter and a short time after his wife had been granted a decree of divorce from him, the said Roberts demanded of appellant and received payment of the balance of the purchase price of the said land. Appellant Jenkins took possession of the land under the said deed from George Roberts on June 8, 1929, and remained in possession continuously until the date of the trial of this case.

In the divorce suit filed by the wife of the said Roberts on June 12, 1929, she claimed, and was awarded, a one half interest in the land, theretofore conveyed by Roberts, alone, as community property. The said Roberts prosecuted an appeal from the judgment so awarding his former wife such one half interest, and that judgment was affirmed by this court. Roberts v. Roberts, 1931, 35 N.M. 593, 4 P.2d 920.

Suit in partition of said community realty was thereafter brought by Mrs. Roberts, under the name of Nannie J. Stone, against her former husband. Appellant Jenkins, having now been ousted of the wife's portion of the land, thereafter and in July, 1932, filed suit upon the covenants of warranty of his deed to the land, suing in attachment, attaching other lands of the husband, Roberts. Plaintiff (Jenkins) in said suit sought a recovery for one half of the purchase price of the said land, because of his ouster from an undivided one half interest in the premises by the said Nannie Stone Roberts. Lands of the said Roberts situated in Torrance County were attached in said suit.

Appellee A. E. Huntsinger, claiming to be the owner of the attached lands situated in Torrance County, under a deed from Roberts alone, of a date prior to the attachment suit, but unrecorded, intervened in said attachment suit; defendant Roberts did not appear and judgment by default was entered against him.

Intervenor Huntsinger, in the attachment suit (appellee here), in addition to alleging ownership of the attached land, alleged that the deed from Roberts to appellant Jenkins was wholly void and without effect, on the ground that Roberts' wife had not joined in the conveyance as required by Chap. 84, Laws of 1915.

The issue of what title, if any, was conveyed by the sole deed of Roberts to Jenkins in 1929 was thus first raised and litigated in this suit in attachment, in which appellee Huntsinger appeared as intervenor. Appellant Jenkins in the attachment suit relied upon failure of warranty. He recovered damages and the land was ordered sold to satisfy the judgment. Then, in the subsequent suit from which this appeal arose, appellant urged that, although the property conveyed in June of 1929 by the sole deed of Roberts was then community property, that, nevertheless, the covenants of warranty contained in said deed “had the effect of transferring from said George Roberts to plaintiff all his title after the entry of the decree of divorce and division of community property” in Mrs. Roberts' suit aforementioned, and also that it “estopped the said George Roberts and his assigns from denying such transfer.” The question was decided against this appellant's contention.

The said George Roberts thereafter, on March 25, 1935, executed a quitclaim deed to appellee for the entire section of land located in Lincoln County, which he had theretofore endeavored to convey by his sole deed to appellant Jenkins, and the suit at bar to quiet title was brought by appellant to remove the deed made to appellee Huntsinger as a cloud upon his title. Intervenor Huntsinger prevailed in the lower court and Jenkins prosecutes this appeal. The former wife of Roberts thereafter and on May 2, 1935, conveyed her undivided one half interest in the section of land in Lincoln County to appellant, and she has no interest in this litigation.

Disposition of this case can be made without considering all the many and intricate angles which this litigation, involving three separate suits, between some of the parties, at least, or touching the property in question, presents. The one principal point presented by this appeal, and now to be considered and decided, determines the rights of all parties herein. The point has to do with the effect of a deed of conveyance to community property, under the circumstances here presented, executed by a married man in which his wife did not join.

Appellant Jenkins relies upon an interpretation of the statute which would, under the circumstances of the case, make the Roberts deed “voidable” only and not wholly void and of no effect, and urges that the circumstances by which Roberts subsequently acquired his one-half of the section of land as his separate estate through the divorce action, and notice to Huntsinger of all the facts, should, and would, through relation back, give validity to the Roberts deed of 1929.

Appellee Huntsinger relies upon the invalidity and ineffectiveness from its inception of the deed from Roberts alone to appellant Jenkins in 1929, to convey title.

Chapter 84, Laws of 1915 (section 68-403, Comp.St. of 1929), as amended by Chapter 84, Laws of 1927, provides: “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, except, that the husband may convey directly to the wife or the wife to the husband without the other joining in the conveyance.”

It is clear that when the deed from Roberts to the land in question was executed and delivered he was married, that the land was community property, and that the wife did not join. We have simply the question of determining the effect of an attempted conveyance in view of the controlling statute and under the present circumstances. It becomes largely a question of defining the meaning of the language of the act which provides for joinder of husband and wife and concludes with the warning “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.” Appellant contends for an interpretation of the word “void” as being synonomous with the word “voidable.”

[1] It may be conceded that the word “void”, especially when standing alone and unamplified or explained, under many circumstances, has been held to mean “voidable” only. The language as here employed by the legislature, however, seems to us to fairly bear but one interpretation; and that is that any such deed is of no effect for any purpose, and therefore, a nullity. Other language of the statute, we believe, clearly supports this view. It is provided that any such transfer or conveyance “attempted to be made”, etc., shall be “void and of no effect.” The legislature was not disposed to rest upon the possible uncertainty of interpretation of the word “void.” And, to strengthen the language it would appear, it added the phrase “and of no effect.” And if this were not enough to evince a legislative intention of enjoining upon both spouses the absolute necessity of a common agreement and joinder by deed in alienation of all community real property, we should be able to find in the phrase “attempted to be made” additional support for this interpretation. That is to say, the legislature does not dignify the effort at alienation under the circumstances it had condemned as illegal and inefficacious, with the term “conveyance made”, but uses instead the term “conveyance attempted to be made.” (Emphasis ours.) But, still another more convincing fact is to be found in the position of the concluding clause of this statute, as hereinafter to be noticed.

The following New Mexico cases have touched upon this statute, though in none of them, appellant contends, and perhaps correctly, were we called upon to decide directly and specifically the question here presented-that is, whether a conveyance made in violation of the statute could not, nevertheless, under such circumstances as here presented, be held voidable merely, rather than wholly void. Adams v. Blumenshine, 27 N. M. 643, 204 P. 66, 20 A.L.R....