Reade v. Lea

Citation14 N.M. 442,95 P. 131
Decision Date26 February 1908
CourtSupreme Court of New Mexico

Syllabus by the Court.

It is the settled doctrine of this court that property rights of husband and wife are, except as modified by local statute, to be judged by the Spanish law in force in this territory at the date of its acquisition from Mexico.

Under the community system, which was a part of that system of law, the wife had, until the termination of the marriage relation, no vested or tangible interest in the community property, and her interest therein was a mere expectance, similar to that which an heir possesses in the estate of an ancestor.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 917.]

Under that system the husband, on the other hand, was, so long as the marriage relation existed, for all practical purposes, the real and veritable owner of the community property.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 26, Husband and Wife, § 917.]

Under that system the husband, subject always to the limitation that he should not act in fraud of his wife's expectancy, had, during the marriage relation, full power to sell community property, and it was not necessary that his wife join in the conveyance.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 26, Husband and Wife, § 930.]

The right of alienation by his personal deed thus given the husband attaches as a vested right in community property, as such is acquired, and such right is not subject to legislative interference.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 930.]

The act of March 20, 1901 (Laws 1901, p. 113, c. 62, § 6), providing that neither husband nor wife shall dispose of real estate acquired during coverture by onerous title, unless both join in the execution of the deed, does not affect such property acquired prior to the passage of the act.

A deed, executed subsequent to that act, for property deeded to the husband, for valuable consideration, previous to the act, and during the marriage relation, conveys the title, although such deed was signed only by the husband.

Appeal from District Court, Dona Ana County; before Justice Frank W. Parker.

Suit to quiet title by D. M. Reade against Pilar S. De Lea. Judgment for plaintiff, and defendant appeals. Affirmed.

One Adolpho Lea and the defendant Pilar S. De Lea, were married in December, 1851, and continued to be husband and wife until the former's death intestate, in Dona Ana county, on April 23, 1902. The premises involved were acquired by two conveyances, running to the husband, Adolpho, dated, respectively, April 6, 1889, and June 14, 1893. In April, 1902, and thus only a few weeks before his death, the husband, for a valuable consideration, executed to D. M. Reade a warranty deed for the land in dispute. The wife did not join in the deed. Reade brought suit to quiet the title against the wife, and the trial court, holding that she had no interest in the land, rendered judgment for Reade, from which decision she prosecutes this appeal.

Abbott, J., dissenting.

It is the settled doctrine of this court that property rights of a husband and wife are, except as modified by local statute, to be judged by the Spanish law in force in this Territory at the date of its acquisition from Mexico.

Numa C. Frenger, for appellant.

Fall & Moore and Moore & Paxton, for appellee.


The case turns upon the effect of the deed from Adolpho De Lea to Reade. The appellant contends that it conveyed no title because the wife did not join, as required by section 6, c. 62, p. 113, Laws 1901, which provides that “neither husband nor wife shall convey, mortgage, incumber or dispose of any real estate or legal or equitable interest therein acquired during coverture by onerous title unless both join in the execution thereof.” The appellee concedes that the property was acquired during coverture by onerous title. He admits that, if that act is applicable, the judgment was wrong. He contends, however, that the act cannot apply to property acquired previous to its date, for the reason that, as to such, vested rights existed in the husband, which it was beyond the power of the Legislature to take away by requiring the wife to join. Was the trial court right in sustaining this view? This involves an inquiry as to what were the rights of the husband in the property prior to the act of 1901.

This court has, in a number of cases, dealt with questions of property right between husband and wife, and has uniformily recognized the civil law, in the absence of specific statute, as controlling. A brief review of former decisions of this court, upon this point, will demonstrate this. In Chavez v. McKnight, 1 N. M. 148, decided in 1857, opinion by Judge Brocchus, it was held that the civil law was the rule of practice in this territory, and that by its terms the wife acquires a tacit lien or mortgage upon the property of the husband, to the amount of the total property of which he became possessed through her. This case has been referred to in one or two very recent decisions of this court. Ilfeld v. De Baca, 89 Pac. 244; In re Myer, 89 Pac. 246. In Martinez v. Lucero, 1 N. M. 208, decided the same year by the same judge, it was held, applying the civil law, that during marriage the administration of the total property belongs exclusively to the husband, and the wife cannot during the conjugal association recover it from her husband, without showing waste or dissipation of it by her husband. In Laird v. Upton, 8 N. M. 409, 415, 45 Pac. 1010 (decision in 1897, by Mr. Justice Collier), reference is made to the community system, and the presumption inhering in that system, that all acquisitions during marriage are community property. In Barnett v. Barnett, 9 N. M. 207, 50 Pac. 337, opinion by Chief Justice Smith, it was held that, in the absence of any statute ascertaining the rights of husband and wife, after legal separation, and during the lives of each, the civil law of Spain governs, and that under this law the wife, by adultery, forfeits the right, which that law gives on dissolution of the community, to one-half of the community property. In Crary v. Field, 9 N. M. 229, 50 Pac. 342, Id., 10 N. M. 257, 61 Pac. 118, the right of the surviving husband, under the civil law, to sell so much of the community realty as may be necessary to pay the community debts is declared, and the validity of such a sale is upheld. in Neher v. Armijo, 9 N. M. 325, 54 Pac. 236, opinion by Mr. Justice Crumpacker, it is held, announcing a familiar civil-law doctrine, that the legal presumption that property acquired by either husband or wife during the matrimony is community property may be overcome by clear and conclusive proof to the contrary. In Gillett v. Warren, 10 N. M. 523, 542, 62 Pac. 975 (opinion by Mr. Justice Parker), the community system is recognized as in force, and it was there held that the surviving husband, not only had the power under the system to sell community real estate in payment of community debts (as ruled in Crary v. Field, supra), but community personalty as well. In Strong v. Eakin, 11 N. M. 107, 66 Pac. 539 (opinion by Mr. Justice McFie), the Spanish law as to community or acquest property is again held to be in force, in so far as not abrogated by statute; and, interpreting that law, it is held that all property acquired and held by husband and wife during coverture is presumed to be community property, and to be subject to community debts, and that every debt contracted during marriage is likewise presumed to be a community debt. In Brown v. Lockhart, 12 N. M. 10, 71 Pac. 1086 (opinion by Chief Justice Mills), the doctrines announced in Strong v. Eakin, supra, are reiterated. In McAllister v. Hutchison, 12 N. M. 111, 117, 75 Pac. 41 (opinion by Mr. Justice Baker), the civil-law community system is recognized as governing the alienation of marital property. From the foregoing we consider it declared, by the harmonious decisions of this court, both before and since the introduction of the common law by Act Jan. 7, 1876 (Comp. Laws, § 2871), that the civil law controls the present case, unless modified by the act of 1901. Indeed, this is not controverted by counsel in their briefs.

It only remains, therefore, to determine, first, what was the nature of the community system as to matters of property; second, what were the husband's rights as to such property (the marriage still existing), at the date of the act of March 20, 1901 ; and, third, what effect, if any, that act had upon such rights. The general principles applicable to the community system are declared, with great unanimity, by the authorities. Upon marriage the law recognized a partnership between the husband and wife, as to property acquired during such relation, by title not gratuitous. Schmidt, Law of Spain and Mexico, pp. 12-14. The relationship has been variously described as a community of property (Ballinger on Community Property, § 18), a conjugal partnership (Childers v. Johnson, 6 La. Ann. 634; Mabie v. Whittaker, 10 Wash. 662, 39) Pac. 172), a matrimonial copartnership (Ord v. De La Guerra, 18 Cal. 67), a property partnership (Fuller v. Ferguson, 26 Cal. 569). Of course the word “partnership,” as thus used, is a matter of mere analogy, since the marital relation, viewed in its business aspect, differs very evidently from the commercial partnership. Ballinger, § 16. Under the community system the husband has the fullest power of management and disposition of the community property, subject only to the condition that he shall not act in fraud of his wife. He has the right to sell community property, real or personal, during her lifetime, without her consent. Succession of Cason, 32 La. Ann. 792; Brewer v. Wall, 23 Tex. 585, 76 Am. Dec. 76; McAllister v. Hutchison), 12 N. M. 117, 75 Pac. 41; Garrozi v. Dastas, 204 U. S. 64, 27 Sup. Ct. 224, 51 L. Ed. 369....

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