McGRAIL v. FIELDS

• Decision Date: 09 March 1949
• Docket Number: No. 5135,5135
• Citation: 203 P.2d 1000,53 N.M. 158
• Parties: McGRAIL v. FIELDS et al.
• Court: New Mexico Supreme Court

53 N.M. 158

203 P.2d 1000

McGRAIL

v.FIELDS et al.

No. 5135.

Supreme Court of New Mexico.

March 9, 1949.

[203 P.2d 1001, 53 N.M. 159]

Geo. T. Harris, A. D. Williams and Theodore R. Johnson, all of Hobbs, for appellant.

John R. Brand and U. M. Rose, both of Hobbs, for appellee.

BRICE, Chief Justice.

This is a statutory action instituted by appellant to quiet title to real property situated in the city of Hobbs, New Mexico. The defendant (appellee) Helen Fields, denied that plaintiff had title to the property in suit, and specially pleaded the ten year statute of limitation.

The trial court's findings of fact and conclusions of law are as follows:

'(1) That W. F. Roark and P. L. Hubby, title predecessors of Helen Fields for more than ten years following May 29, 1931, made an actual visible appropriation of the lands described as the South 40 feet of Lots 1 and 2, Block 50, Original town of Hobbs, Lea County, New Mexico, together with all improvements thereon, and that the said W. F. Roark and P. L. Hubby commenced and continued said appropriation through color of title and claim of right inconsistent with and hostile to the claims of all others, and that for such period they continuously paid all taxes which during that period were levied on the lands above described.

'(2) That this action was not brought within the time allowed by law within which to bring same, and that plaintiff is barred by reason of failure to bring said action within the time provided by law.

'(3) That on May 29, 1931, G. J. Moore executed and delivered to W. F. Roark a warranty deed conveying the property involved herein for a consideration of $900.00. W. F. Roark and wife thereafter conveyed said property to P. L. Hubby, and that said P. L. Hubby and wife conveyed said property to the defendant Helen Fields; that at the time of the execution of the warranty deed to W. F. Roark, G. J. Moore was a married man and that the property involved was community property; that G. J. Moore surviving his wife succeeded to her interest in said property.

'From the foregoing Findings of Fact the Court makes the following Conclusions of Law:

'(1) That the defendant and cross-complainant Helen Fields, as a matter of law, should prevail.

'(2) That plaintiff was barred from commencing any action adverse to the claim of title of P. L. Hubby and his grantee after May 29, 1941.

'(3) That the warranty deed delivered by G. J. Moore to W. F. Roark operated to pass all title to the property thereafter acquired by G. J. Moore, and the plaintiff claiming under said G. J. Moore is barred and estopped from denying the title of the grantee, to-wit, W. F. Roark, under the original warranty deed.

'(4) Judgment should be entered dismissing the complaint, quieting title in cross-complainant and against plaintiff.

'(5) That all requested Findings of Fact and Conclusions of Law inconsistent herewith are hereby dismissed. To all of which the plaintiff is allowed an exception.'

The following statement of facts made in appellant's brief, appellant's brief is accepted by appellee:

'On the 29th day of May, 1929, G. J. Moore, a married man,-his wife not joining in the conveyance-attempted to sell and convey by deed, with full covenants of warranty, the above described property(property in suit) to W. F. Roark. It was the community property of G. J. Moore and his wife. The consideration recited in the deed was $900.00.

'After such attempted conveyance and prior to November 28, 1945, the wife of G. J. Moore died and was survived by her husband. Subsequent to the death of the wife and prior to November 28, 1945, G. J. Moore died and was survived by W. L. Moore, a son and sole and only heir at law of G. J. Moore. On November 28, 1945, W. L. Moore, by quit-claim deed, conveyed the property to plaintiff, M. H. McGrail.

'W. F. Roark went into possession of the premises at the time of the attempted conveyance thereof to him by G. J. Moore on May 29, 1929; and the court found that W. F. Roark and his successors continued such possession for a period of ten years after May 29, 1929. On March 30, 1935, W. F. Roark and wife conveyed the premises to P. L. Hubby, the deed being filed for record on May 11, 1937. The property was conveyed by P. L. Hubby and wife to Helen Fields, appellee, on October 23, 1945.

'The property was sold for taxes for the year 1936, and Tax Sale Certificate No. 2697 was issued to C. M. Aldred. Redemption was made therefrom by W. F. Roark by Redemption Certificate No. 1552. It was again sold for taxes for the year 1942, to the State of New Mexico, and Tax Sale Certificate No. 6609 was issued and assigned to B. L. Huchton. Redemption was made by M. B. Johnson by Redemption Certificate No. 3419.'

It is apparent from the the record that Johnson was acting as agent for Hubby in redeeming this property from tax sale.

It is asserted that as defendant claims title through mesne conveyances from W. F. Roark, who obtained his claim of title by a deed from G. J. Moore which was not signed by Moore's wife, the property at the time being the community property of Moore and wife, that Moore's deed to Roark was void, and that defendant's claim of title under and through Roark is likewise void.

Defendant counters with the assertion that Moore's deed to Roark was effective to estop Moore after the death of Mrs. Moore, and after his death his only heir at law, to claim title adversely to Moore's deed; that this deed conveyed to Roark, Moore's after acquired title, which became vested in him upon his wife's death by operation of law.

That part of the New Mexico statute involved is as follows: '* * * 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 * * *.' Sec. 65-403, N.M.Sts.1941.

Appellee admits that the question was determined adversely to her contentionshere, in Jenkins v. Huntsinger, 46 N.M. 168, 125 P.2d 327, but cites and quotes from the dissenting opinion of Mr. Justice Bickley in that case, which is in line with her contentions and the trial court's decision; and suggests that the Jenkins case should be overruled.

In that case it was determined that the husband had attempted to convey community real property by his deed alone. Subsequently the parties were divorced, and he became the sole owner of half of it. We held that the deed was absolutely void, and that it did not convey the part of the property allotted to the husband in the division as subsequently acquired property. We reviewed the authorities at great length, and concluded that the deed being absolutely void, the grantor conveyed nothing by his deed and that he was not estopped to deny its validity.

It is contended that we should overrule the Jenkins case. We cited and quoted from many authorities to support our conclusion in that case, but none of the Texas cases were mentioned, which it is asserted, support defendant. We will review the Texas decisions only.

The Constitution and laws of Texas on the subject are as follows:

'* * * No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of defeasance shall be void.' Art. 16, Sec. 50, Const. of Texas, Vernon's Ann. St.

'The homestead, whether the separate property of the husband or wife, or the community property of both, shall not be disposed of except by the joint conveyance of both the husband and the wife, except where the husband is insane or has permanently abandoned the wife * * *.' Art. 4618, Ch. 3, Title 75, Vernon's Civil Statutes.

Neither the Texas Constitution nor statute provides that deeds conveying homesteads by husband or wife alone are void; whereas the Constitution provides that 'No mortgage * * * on the homestead shall ever be valid * * * whether such mortgage * * * shall have been created by the husband alone, or together with his wife'.

In Texas the husband may convey community property other than the homestead, without the wife's joinder or consent. Regarding the effect of a deed made by the husband alone to the homestead, the Supreme Court of Texas in Marler v. Handy, 88 Tex. 421, 31 S.W. 636, 639, said: 'The deed made by Marler to Handy was notvoid under our constitution, and, though inoperative so long as the property was occupied by him and his wife as a home, yet when he and his family removed therefrom to another homestead, he acting in good faith for the best interests of himself and his family, the deed became operative to vest title in Handy, and the property could not be recovered by the husband, because he would be estopped by the deed, and it could not be recovered by the wife, because her homestead right ceased when her hsuband acquired and she removed with him to another homestead.'

This holding is limited somewhat in Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2, 3, in which the Texas court said: 'What is prohibited by law is as clearly invalid as if it had been declared void. The alienation of the homestead by a married man without the consent of the wife, evidenced in the manner required by law, being prohibited, his attempted conveyance without her joining in the deed is void, in so far as it in any manner affects her interests. * * * Under similar statutory and constitutional requirements, it is very generally held in other states that the conveyance by the husband alone is void (citing authorities). * * * The decision in that case [Irion v. Mills, 41 Tex. 310] is in harmony with the very recent case of Marler v. Handy, 88 Tex. 421 [31 S.W. 636; Id., Tex.Civ.App.], 32 S.W. 162, in which it was held that the deed to the homestead executed by the husband alone operated by way of estoppel to pass the title to the grantee, upon the...