Levy v. Kalabich.

• Decision Date: 27 December 1930
• Docket Number: No. 3607.,3607.
• Citation: 295 P. 296,35 N.M. 282
• Parties: LEVYv.KALABICH.
• Court: New Mexico Supreme Court

35 N.M. 282

295 P. 296

LEVY

v.KALABICH.

No. 3607.

Supreme Court of New Mexico.

Dec. 27, 1930.Rehearing Denied Feb. 2, 1931.

Syllabus by the Court.

Wife held not necessary party defendant in suit against husband to enforce mechanic's lien on community property; husband's “management and control” of community property embraces right and duty to represent community in its litigation (Laws 1915, c. 84).

Wife not necessary party defendant in suit to foreclose mechanic's lien on community property.

Appeal from District Court, Colfax County; Kiker, Judge.

Suit by A. L. Levy against Milo Kalabich to foreclose a mechanic's lien, and suit by Andrew Tiberti and wife to enjoin sale of land under foreclosure decree, opposed by A. L. Levy, in which Edith Higgins Kalabich intervened. The court held the foreclosure decree void for lack of jurisdiction, and A. L. Levy appeals.

Reversed and remanded, with directions.

Wife not necessary party defendant in suit to foreclose mechanic's lien on community property.

George E. Remley, of Raton, for appellant.

Fred J. Voorhees and A. C. Voorhees, both of Raton, for appellee.

WATSON, J.

Andrew Tiberti and wife sued to enjoin a judicial sale of real estate under a decree foreclosing a mechanic's lien in favor of A. L. Levy against Milo Kalabich. The amended complaint was dismissed, but injunction was awarded upon the intervention of Edith Kalabich, wife of Milo, on the sole ground that the real estate in question was community property, and that the intervening wife had not been made a party defendant in the foreclosure suit. The court held that the decree was void for lack of jurisdiction. Levy, plaintiff in the foreclosure suit, and defendant in the injunction suit, has appealed. Several questions raised need not be considered, since one is decisive, viz., that Edith Kalabich was not a necessary party to the suit to foreclose the lien on the community real estate of herself and her husband.

We venture to say that the practice in this state has not conformed generally, if at all, to the holding of the learned trial judge. So we proceed first to examine appellee's contention in its favor.

He urges that such holding is the necessary result of Beals v. Ares, 25 N. M. 459, 185 P. 780, 788; the subsequent enactment of Laws 1915, c. 84, and the later decisions in Terry v. Humphreys, 27 N. M. 564, 203 P. 539, and Adams v. Blumenshine, 27 N. M. 643, 204 P. 66, 20 A. L. R. 369. He argues that, since the wife's interest is equal to the husband's, even though the dominion and control be his, as stated in Seals v. Ares, supra, and since the husband's dominion and control over the real estate was done away with by Laws 1915, c. 84, as said in Terry v. Humphreys, supra, both husband and wife are necessarily parties to a proceeding in which it is sought to reach community real estate.

An important premise on which appellee relies has been repudiated by this court in Fidel v. Venner, 35 N. M. -, 289 P. 803, where we disapproved the broad expression in Terry v. Humphreys, supra; held that Laws 1915, c. 84, did not do away with the husband's management and control of community real estate, except to require the wife's joinder in deeds and mortgages; and specifically decided that a lease for a definite term, not involving consumption of part of the realty, may be executed by the husband alone. That decision also refutes the contention here made that the lease made by Milo Kalabich, and his consent that his lessee make the improvement resulting in Levy's lien, were void.

The effect of Fidel v. Venner, supra, is that the husband's former control and management of both personalty and realty are limited only as against fraud on the wife's interest, as it always was, and against deeding or mortgaging the realty. Beals v. Ares, supra, did not purport to lay down any new rule as to the wife's interest, but undertook to declare the law as it had always existed in New Mexico, except perhaps under Laws 1901, c. 62. So, if appellee's contention is sound, it has always been the law, and bench and bar have simply overlooked it.

There is logic in the contention that, if husband and wife are equal owners of property, they are both necessary parties to contracts and to litigation which may affect it. Appellee's criticism of the agency theory is also not without merit. The general principles of agency do not permit judgment affecting the principal's property in a suit against the agent.

But this is common-law logic. It does not often apply when considering the property rights of husband and wife in the community property states. Our system is statutory. It has developed through the legislative conference of this or that specific right or power upon the one or the other of the members of the community, without endeavor to preserve an harmonious theory. The common law was developed through the reasoning of judges, always endeavoring to be true to the fundamental theory of the nature of the marriage relation. The basic principle of our system is that the matrimonial gains are kept separate from other property and dedicated to the community. This is a feature of the civil law. It is unknown to the common law. The nature of the community and the residence of title to its property have long been subjects of controversy; in this court as elsewhere. But we need not be troubled with it here. The point we make is that we shall not be able to settle the matter, as the common law probably would, by proceeding from the general pronouncement in Beals v. Ares, and letting that theory carry us whither it...