Treadwell v. Henderson , 58 N.M. 230 ( 1954 )

On Motion for Rehearing

McGHEE, Chief Justice.

Motion for rehearing relies heavily upon certain earlier decisions by this Court ; deemed controlling by the movant and previously overlooked.

The motion will be denied but will be taken as an opportunity to clarify certain language contained in the recent case of Keirsey v. Hirsch, 1953, 58 N.M. 18, 265 P.2d 346, 353; that language is:

“It is settled in New Mexico that real estate owned by a decedent descends upon his death to his heirs and not to his administrators; it is further settled that the purchaser under a real estate contract has acquired a property interest in land of such a character that it descends to his heirs and not to his administrators. * * * ”

From the foregoing language it is argued that a real estate contract is a transfer or conveyance of an interest in land within § 65-403, 1941 Comp. The reference to an “interest in land” made in the Keirsey case was intended to and does refer to the doctrine of equitable conversion as more fully explained by Justice Brice in Mesich v. Board of County Commissioners of McKinley County, 1942, 46 N.M. 412, 129 P.2d 974. The doctrine is treated in detail by Harlan F. Stone, subsequently Chief Justice of the United States Supreme Court, in 13 Col.L.Rev. 369. Historically, this type of equitable interest was a right in personam enforced by the Chancellor and based upon the maxim, “Equity regards as done what ought to be done.” A transfer or conveyance, if it be called that, implemented by this established equitable doctrine, is entirely different from the transfer or conveyance by the parties contemplated by the statutes here in question.

Nor do we consider the case of El Paso Cattle Loan Co. of El Paso, Tex. v. Stephens & Gardner, 1924, 30 N.M. 154, 228 P. 1076, of consequence here. The decision in the instant case does not comprehend the specific performance of a real estate contract covering community property executed by the husband alone; the decision applies the equitable doctrine ■ of estoppel for the purpose of holding the wife responsible for her individual commitments upon which other persons have relied and changed their position.

Motion for rehearing is denied.

COMPTON and SEYMOUR, JJ., concur. SADLER and LUJAN, JJ., dissenting..