Citation204 P.2d 990,53 N.M. 198,10 A.L.R.2d 966
Decision Date11 March 1949
Docket NumberNo. 5022,5022
PartiesMcDONALD v. SENN et al.
CourtSupreme Court of New Mexico

[204 P.2d 990, 53 N.M. 199]

Frazier & Quantius, of Roswell, for appellant.

E. E. Young, of Roswell, for appellees.


The original opinion filed herein has been withdrawn and the following substituted in considering motion for rehearing.

BRICE, Chief Justice.

The question for decision is whether the wife's interest in the community real estate may be sold under foreclosure of a purported lien arising on a money judgment against the wife alone for a personal tort committed during coverture in the operation of an automobile constituting her separate property.

The facts are as follows: The plaintiff (appellant) sued defendants Senn to recover damages for injuries alleged to have been inflicted upon him by defendants in the negligent operation of an automobile. The trial court dismissed the case as to the husband, to which the plaintiff did not object. The trial resulted in a personal judgment against defendant Mrs. Senn for upwards of $3500, from which judgment she appealed to this court, resulting in its affirmance. See McDonald v. Senn, 50 N.M. 222, 174 P.2d 564. A transcript of the judgment was filed, as provided by Sec. 19-906 N.M. Sts. 1941, which is as follows:

'Any money judgment rendered in the Supreme or district court shall be docketed by the clerk of the court in a book kept for the purpose, and shall be a lien on the real estate of the judgment debtor from the date of the filing of a transcript of the docket of such judgment in such book in the office of the county clerk of the county in which such real estate is situate.'

The evidence in the original suit disclosed that the car was owned by the defendant Mrs. Senn; was being driven, at the time of the accident in which plaintiff was injured, by her nephew, a member of their family, and that both defendants Senn were in the car at the time of the accident.

It was to foreclose the purported lien of the judgment mentioned that plaintiff in that action commenced this separate suit to foreclose the claimed lien against described real estate. In his complaint he alleged 'that Mrs. J. E. Senn owns a vested community interest' in such real estate.

It is the judgment in this second suit that is now before us for review. No testimony was taken at the trial, and the case was decided on the pleadings. They consisted of the plaintiff's complaint and the defendant's motion to dismiss, to which was attached Exhibit 'A', an affidavit of Mrs. J. E. Senn, the judgment debtor. In this affidavit, affiant recited that she was the wife of defendant J. E. Senn at the time of verifying the affidavit, and at the time the judgment was rendered against her. She also stated that the real estate sought to be foreclosed was community property of herself and her husband. The basis of the motion to dismiss was that no relief by way of foreclosure of the judgment lien could be granted because the judgment was against Mrs. Senn alone, andthe lien was sought to be foreclosed against real property which was a part of the community estate of defendant and her husband at the time the judgment was rendered. The right to sell Mrs. Senn's community interest in the property for the purpose of satisfying the judgment against her was challenged. The court found in substance that the judgment was for a personal tort of the wife committed in connection with the operation of an automobile owned by her, and that the tort was not committed for the benefit of the community. Accordingly, the court concluded:

'No suit may be brought by or against the community property, as such, for torts committed by the wife, unless the torts of the wife were committed for the benefit of the community.'

The judgment rendered was one dismissing the plaintiff's complaint.

We have not had occasion to decide the question, and the decisions of the courts of the original community property states (counting Washington as one) disclose that only California, Washington, and Arizona have decided it.

The law in this state regarding the property rights of husband and wife is statutory, but was modeled after the civil law of Spain and Mexico and those laws will be looked to for definitions and interpretations, Beals v. Ares, 25 N.M. 459, 185 P. 780; Levy v. Kalabich, 35 N.M. 282, 295 P. 296. These statutes are as follows: (1941 Compilation):

'65-206. Either husband or wife may enter into any engagement or transaction with the other, or with any other person respecting property, which either might, if unmarried; subject, in transactions between themselves, to the general rules of common law which control the actions of persons occupying confidential relations with each other.'

'65-301. The property rights of husband and wife are governed by this chapter unless there is a marriage settlement containing stipulations contrary thereto.'

'65-302. Husband and wife may hold property as joint tenants, tenants in common, or as community property.'

'65-304. All property of the wife owned by her before marriage and that acquired afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof is her separate property. The wife may without the consent of her husband convey her separate property.'

'65-305. All property owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof is his separate property.'

[204 P.2d 992, 53 N.M. 202]

'65-306. The earnings of the wife are not liable for the debts of the husband.'

'65-308. The separate property of the husband is not liable for the debts of the wife contracted before the marriage.'

'65-309. The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or after marriage.'

'65-401. All other property acquired after marriage by either husband or wife, or both, is community property; but whenever any property is conveyed to a married woman by an instrument in writing the presumption is that title is thereby vested in her as her separate property. * * *'

'65-402. The property of the community is not liable for the contracts of the wife, made after marriage, unless secured by a pledge or mortgage thereof executed by the husband.'

'65-403. 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 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.'

'65-405. Whenever the husband is non compos mentis or (here follows other grounds) or for any other reason is incapacitated to manage and administer the community property the wife may present a petition duly verified to the district court of the county wherein any of the community property is located or situated, stating the name of her husband, a description of all community property, both real and personal, and the facts which render him incapacitated to manage and administer the community property and praying that she be substituted for her husband, as the head of said community, with the same power of managing, administering and disposing of the community property, as is vested in the husband by this chapter.'

'65-408. Upon the hearing of the petition so filed by the wife the court shall render judgment therein, either dismissing said petition or adjudging the wife thereafter to be the head of said community, with full power of managing, administering and disposing of the community property, either real or personal, with such limitation therein as to the court may appear to be in furtherance of justice.'

'31-109. Upon the death of the husband one-half of the community property goes to the surviving wife and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition goes one-fourth to the surviving wife and the remainder in equal shares to the children of the decedent and further as provided by law. * * *,

'25-702. Whenever the husband and wife shall have permanmently separated and no longer live or cohabit together, as husband and wife, either may institute suit in the district court for a division of property, or for the disposition of the children, without asking for or obtaining in said suit a dissolution of the bonds of matrimony; or the wife may institute suit for alimony alone.'

The civil law of Spain, as translated by Schmidt, sets out the Spanish-Mexican laws in relation to the property of married persons.

Under that law the income from the separate property of the spouses belong to the community, and the husband can dispose of both the real and personal property without the wife's consent; otherwise, it is substantially like that of New Mexico. See Civil Laws of Spain and Mexico by Schmidt, Arts. 43 et seq.

We start with the established fact that the plaintiff has a judgment lien against the defendant's 'real estate'. It her interest in this community property is 'real estate of the judgment debtor', as contemplated by Sec. 19-906, N.M. Sts. 1941, supra, then it may be foreclosed as attempted here under the following statute:

'Any person holding a judgment lien on any real estate situated in this state may subject said real estate to the payment of his judgment by a foreclosure suit in any court of competent jurisdiction, such suit to be instituted and prosecuted in the same manner as ordinary suits for the foreclosure of mortgages, and the sale thereunder to be held...

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27 cases
  • Gallagher's Will, In re, 5532
    • United States
    • Supreme Court of New Mexico
    • 28 Marzo 1953 property concept in Washington and New Mexico, the widow points to a statement made by this court in McDonald v. Senn, 1949, 53 N.M. 198, 204 P.2d 990, 10 A.L.R.2d 966, to the effect the Washington community property law is based on the theory of tenancy by entireties and that the......
  • McDonald v. Senn
    • United States
    • Supreme Court of New Mexico
    • 11 Marzo 1949
    ...204 P.2d 990 53 N.M. 198, 1949 -NMSC- 020 McDONALD v. SENN et al. No. 5022.Supreme Court of New MexicoMarch 11, Appeal from District Court, Chaves County; J. C. Compton, Judge. Suit by Rice McDonald against Mrs. J. E. Senn and others to foreclose purported lien arising out of money judgment......
  • Swink v. Fingado, 20364
    • United States
    • Supreme Court of New Mexico
    • 2 Marzo 1993 the entireties were abrogated when New Mexico enacted statutes adopting the community property system. McDonald v. Senn, 53 N.M. 198, 207, 204 P.2d 990, 995 (1949) (per curiam).10 Although in common usage the conjunction "or" denotes alternatives, the alternatives are not necessarily mut......
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    ...v. Greathouse (In re Miller's Estate), 44 N.M. 214, 220-21, 100 P.2d 908, 912 (1940). In the seminal case of McDonald v. Senn, 53 N.M. 198, 204 P.2d 990 (1949) (per curiam), in which this Court repudiated the notion that a wife's interest in community property is a mere expectancy, id. at 2......
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