Mcbee v. O'connel D1

• Decision Date: 06 December 1911
• Citation: 120 P. 734,16 N.M. 469
• Parties: McBEEv.O'CONNEL et al.d1
• Court: New Mexico Supreme Court

16 N.M. 469

120 P. 734

McBEE

v.O'CONNEL et al.d1

Supreme Court of the Territory of New Mexico.

Dec. 6, 1911.

Syllabus by the Court.

An acknowledgment of a deed, or other writing affecting real estate, by the party whose real estate is affected, in the manner established by statute, is a necessary prerequisite to its being recorded under section 3953, C. L. 1897.

An executory contract for the sale of real estate is, when duly executed and acknowledged, a writing entitled to record, within the meaning of section 3953, C. L. 1897.

An acknowledgment of an assignment on the back of an executory contract for the sale of real estate, to which the assignment refers for particulars and purposes of description, is not, under the circumstances given in the following statement of the case, an acknowledgment of the contract itself; and, although the contract was copied into the land records by the proper recording officer, that did not make it of record, and thereby constructive notice to a subsequent purchaser having no actual knowledge of it.

Appeal from District Court, Curry County; before Justice Pope.

Action by W. D. McBee against Pat O'Connel and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Parker, J., dissenting.

An acknowledgment of a deed or other writing affecting real estate, by the party whose real estate is affected, in the manner established by statute, is a necessary prerequisite to its being recorded as authorized by Comp.Laws 1897, § 3953.

This is an action in ejectment, in which the plaintiff seeks to recover from the defendants possession of certain land in Clovis, Curry county, with damages for its detention. In his complaint, the plaintiff alleged that he was the owner in fee of the real estate in question, and that he had “the legal estate in fee simple and the equitable estate in and to” the same, and that, on or about September 1, 1908, the defendants wrongfully entered and ousted him from the premises, and “still unlawfully withhold possession from him.” The plaintiff's claim of ownership is based on an executory contract of sale and purchase of the land in question between the Santa Fé Land Improvement Company and J. M. Ray, made June 27, 1907, and an “assignment” by Ray to the plaintiff, made October 3, 1907. By the agreement, the company named undertook to convey the real estate to Ray by a warranty deed, within a specified time after performance by him of the terms of the agreement on his part. At the time of the assignment above named, the time for performance had not expired.

The assignment, it would seem, was written on the back of the contract referred to, and does not purport to be an assignment of the contract itself; but, instead, of “all right, title, interest and claim in and to the within described lot or parcel of land” to the plaintiff, and an authorization to the improvement company to make conveyance to him, on performance of the requirements of the contract. A certificate of acknowledgment was appended in these words: “Territory of New Mexico, Roosevelt County-ss.: Before me, the undersigned, a notary public in and for said county and -, this day came J. M. Ray who was personally known to me to be the same person who acknowledged the within contract, and the foregoing assignment thereof, and he duly acknowledged the execution of said assignment. Given under my hand and seal, this 3rd day of October, A. D: 1907. Commission expires June 11, 1911. [Signed] John D. Cameron. [Seal.]”

The assignment was indorsed by the proper officer as received for record December 3, 1907, and it, together with the contract itself, was copied into the county land records as of that date. There was no evidence that the defendants had actual knowledge of either the contract or the assignment. They claimed by subsequent purchase from J. M. Ray. The trial court held: “The defendants bought subject to the plaintiff's rights, since the contracts under which the latter held, and the assignment of the same, were duly recorded. These affected real estate, were properly recorded under C. L. 1897, 3952-3954, and thus carried legal notice to subsequent purchasers. The decree will accordingly go for plaintiff.” And judgment was entered accordingly. From that judgment, the defendants appeal to this court.

G. L. Reese, for appellants. R. E. Rowells, for appellee.

ABBOTT, J. (after stating the facts as above).

Of the several errors assigned by the defendants, only two need be considered, since they are decisive of the case. Indeed, one of them alone is, we think, conclusive, but the other is so connected with it, and of such importance, that it cannot properly be disregarded.

[2] It is contended for the appellants that the executory contract on which the plaintiff's claim is based is not an instrument entitled to record, under section 3953, C. L. 1897, as a “writing affecting the title to real estate.” Strictly speaking, such a contract does not affect the title to real estate, in the sense that it effects a present change in it; and it has sometimes been held that such instruments were not entitled to record, unless under express statutory provisions. Volume 24 Am. & Eng. Enc. 80. But while the language of section 3953, supra, is, as above stated, “affecting the title to real estate,” yet further on in the section the words “the real estate affected” are used, and like expressions are found in other sections dealing with the subject. See sections 3931, 3943, 3944, 3945, 3947, 3952, 3964, 3968, 3969, 3970. Section 3953 uses both forms, and 3956 the former only. It seems probable, therefore, that the legislative intention was not to distinguish between “real estate” and the “title to real estate,” which are, in fact, quite different things, but to use the expressions interchangeably, and give to the latter the broader meaning which, perhaps, properly attaches to the former only, and thus to include the class of writings to which the contract in question belongs.

In the brief for the appellants, our attention is called to a case decided by this court -Early Times Distillery Co. v. Zeiger, 11 N. M. 221, 67 Pac. 734-in which the opposite view was expressed. The statement was in the nature of a dictum, and did not, we think, commit the court to that opinion of the law. Statutory provisions, similar to those here involved, have been given a broad construction by courts of high standing. Lewis v. Johnson, 68 Tex. 448, 4 S. W. 644, and cases cited; ...