Johnson v. Amstutz, 14919

• Decision Date: 14 March 1984
• Docket Number: No. 14919,14919
• Citation: 678 P.2d 1169,101 N.M. 94,1984 NMSC 30
• Parties: Gerald I. JOHNSON and Geraldine Johnson, his wife, Plaintiffs-Appellants, v. Ruby Turknett AMSTUTZ, James W. Amstutz, Jewell Amstutz, Margaret Ellen Amstutz Cameron, A.G. Cameron, Joan Martha Amstutz Clark, Joe Clark, Sylvia Ruby Amstutz Wong, Lawrence Chung-Nig Wong, L.A. Scott, Virginia L. Scott, and Mary Frances Johnson (Maskew), Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 1169

678 P.2d 1169

101 N.M. 94

Gerald I. JOHNSON and Geraldine Johnson, his wife, Plaintiffs-Appellants, v. Ruby Turknett AMSTUTZ, James W. Amstutz, Jewell Amstutz, Margaret Ellen Amstutz Cameron, A.G. Cameron, Joan Martha

Amstutz Clark, Joe Clark, Sylvia Ruby Amstutz Wong, Lawrence

Chung-Nig Wong, L.A. Scott, Virginia L. Scott, and Mary

Frances Johnson (Maskew), Defendants-Appellees.

No. 14919.

Supreme Court of New Mexico.

March 14, 1984.

Rehearing Denied April 11, 1984.

[101 NM 94] Martin & Behles, W.T. Martin, Jr., Carlsbad, for plaintiffs-appellants.

Montgomery & Andrews, Walter J. Melendres, Santa Fe, Hinkle, Cox, Eaton, Coffield & Hensley, David L. Spoede, Roswell, for defendants-appellees.

OPINION

RIORDAN, Justice.

George I. and Geraldine Johnson (Johnsons) were among several plaintiffs in a quiet title action against numerous defendants. The district court found for the Johnsons, and on appeal we reversed. Abo Petroleum Corp. v. Amstutz, 93 N.M. 332, 600 P.2d 278 (1979). We held in pertinent part that the contingent remainders in the heirs of the grantors in the Johnsons' chain of title were not destroyed by the 1916 deed. Thereafter, the Johnsons brought an action for declaratory judgment to determine their rights in and to certain real property and the value of improvements made to such real property. The district court granted defendants' motion to dismiss Count I, which is the subject of this appeal. The Johnsons appeal. We affirm.

The sole issue we address is whether the doctrine of destructibility of contingent remainders has ever been the law in New Mexico.

In Abo, we recognized that even though New Mexico adopted the common law of England, pursuant to NMSA 1978, Section 38-1-3, if the common law is not applicable to our condition and circumstances, we will not give it effect. Therefore, we declined to apply the doctrine of destructibility of contingent remainders because the doctrine "is but a relic of the feudal past, which has no justification or support in modern society[.]" Abo, 93 N.M. at 335, 600 P.2d at 281.

In this appeal, the Johnsons argue that until the decision in Abo, the doctrine of destructibility of contingent remainders was the law in New Mexico. In other words, they argue that Abo did not declare that the doctrine has never been the law in New Mexico, but simply declared that the doctrine would not be applied in modern New Mexico society. We disagree with the Johnsons' argument.

In Abo, 93 N.M. at 334, 600 P.2d at 280, we stated that The doctrine of destructibility of contingent remainders has been almost universally regarded to be obsolete by legislatures, courts and legal writers. See, e.g., Whitten v. Whitten, 203 Okl. 196, 219 P.2d 228 (1950); 1 L. Simes and A. Smith, Law of Future Interests Sec. 209 (2d ed. 1956). It has been renounced by virtually all jurisdictions in the United States, either by statute or judicial decision, and was abandoned in the country of its origin over a century ago. Section 240 of the Restatement of Property (1936) takes the position that the doctrine is based in history, not reason. Co...