Miera v. Miera
| Decision Date | 07 April 1919 |
| Docket Number | 2227. |
| Citation | 181 P. 583,25 N.M. 299,1919 -NMSC- 016 |
| Parties | MIERA v. MIERA. |
| Court | New Mexico Supreme Court |
On Motion for Rehearing, June 13, 1919.
Syllabus by the Court.
Under section 2764, Code 1915, where real estate is conveyed to a married woman, the presumption is that title is thereby vested in her as her separate property.
Section 4774, Code 1915, requires all powers of attorney, or other writings containing authority to convey real estate as agent or attorney for the owner of the same, etc., to be acknowledged, certified, filed, and recorded as other writings conveying or affecting real estate are required to be acknowledged.
In order to give validity to a conveyance of lands under power of attorney, the power to convey must possess the same requisites and observe the same solemnities as are necessary in the deed directly conveying the land, and the only recognized exception to the rule is where the execution by the agent or attorney is in the presence and by the direction of the principal.
On Motion for Rehearing.
Under chapter 84, Laws 1915, a transfer or conveyance attempted to be made of the real property of the community by either husband or wife alone is void and of no effect.
Appeal from District Court, Sandoval County; Raynolds, Judge.
Action to quiet title by Merejilda G. de Miera against V. S. Miera. Judgment for plaintiff, directing cancellation of deed to defendant, and he appeals. Affirmed.
E. W Dobson, of Albuquerque, for appellant.
Barth & Mabry, of Albuquerque, for appellee.
In her complaint filed in the lower court appellee alleged that she was the owner in fee simple and in possession of the real estate involved in this litigation, describing the same; that appellant claimed a title or interest in said premises by and through a certain deed alleged to have been executed by appellee and her husband, E. A. Miera, now deceased; that said deed was invalid for the reason that appellee did not execute said deed, nor did she authorize any one else to execute the same for her; and there was a further allegation upon information and belief to the effect that E. A. Miera the deceased husband of appellee, had not signed the deed and that it was a forgery; that said purported deed attempted to convey the real estate in question to appellant and had been placed of record in the county clerk's office of Sandoval county; that appellant had no right, title, interest, or claim whatever in or to the real estate in question.
The relief prayed for was that the appellant be required to set forth the nature of his claim, and that all his adverse rights might be determined by decree of the court; further that it be adjudged that appellant had no estate or interest in or to said land or premises, and that the appellant be required to give up said deed to be canceled, and that the same be canceled under the direction of the court; and for such other relief as the court should deem mete and proper.
Appellant answered the complaint, denying that the appellee was the owner in fee simple and in possession of the land described in the complaint; alleged that E. A. Miera, the husband of appellee, executed the deed in his lifetime; that he had signed it; and further alleged that:
Appellant further stated that he had no knowledge or information as to whether Miera had power of attorney from his wife, and proceeds:
"But alleges that of his own knowledge the said E. A. Miera had executed similar documents under the same circumstances on behalf of his wife."
No demurrer or reply was filed to the answer, and the court heard the evidence offered by the parties.
Appellee put in evidence the patent from the United States, dated October 26, 1911, granting the real estate in question to appellee; also a certified copy of the official plats in the office of the surveyor general at Santa Fé, N. M., of the sections in which the land was located. Appellee did not testify as a witness in the case; the evidence showing that she was a confirmed invalid. Various motions were interposed from time to time by appellant for judgment on account of the claimed failure on the part of appellee to make certain proof which appellant claimed was necessary. Appellant did not testify in the case on his own behalf.
The court made findings of fact in which he refused to find that the signature of E. A. Miera to the deed was in fact a forgery, but did find that the appellee did not sign the deed and did not authorize her said husband or any one else to sign it for her, and that appellee had not conveyed said property nor authorized it to be conveyed, nor did she acknowledge said deed before any officer authorized to take acknowledgments under the laws of the state of New Mexico. Judgment was rendered quieting appellee's title as against the claims of the appellant and directing the clerk of the court to cancel the deed in question to V. S. Miera.
This appeal is prosecuted by the appellant to review such judgment. He has assigned sixteen grounds of error, which he discusses under five propositions. The first point made is that the suit in question was not a suit to quiet title, but to remove a cloud on the title. The second proposition is that appellee, having brought...
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