McDonald v. Lambert

I disagree with the prevailing opinion almost in every conclusion it announces. This is aside from the objection that most of them are premature. The majority say, "The conversations were too indefinite to constitute a contract that would deprive appellee of his separate property;" and "we find no agreement to give appellant an interest in the homestead entry." The trial court whose function it is to resolve the facts did not so find, deeming the matter immaterial. It expressly disclaimed any intention of so doing by assuming the very fact in issue, the making of the contract. It proceeded to hold it void because deemed an oral marriage settlement in contravention of 1929 Comp. § 68-203, requiring a writing to support such an agreement. Accordingly, my first objection is that the cause is not remanded to the district court for a finding as to the truth of the claimed agreement. If it disbelieves the wife's story of the making of such an agreement, and so finds upon issuable facts, the several other important questions resolved by the majority are removed from consideration.

In like fashion, so it seems to me, these far-reaching legal questions touching marital rights are eliminated from decisive answer upon the present review by the majority's declaration that "the conversations were too indefinite to constitute a contract."

But they do not stop with declaring that what was said and done lacks the dignity of a contract, obviously a good stopping point. They go on to explore legal consequences attaching if the conversations had not been "too indefinite to constitute a contract." In other words, they say there was no agreement; but that even if there had been it is unenforceable because (1) there is no law in New Mexico authorizing husband and wife, either orally or in writing, to transmute separate estate into community property, or vice versa; that the law fixes immutably the status of such property tested by the means of its acquisition and that the parties are powerless to change it; and (2) that the alleged contract, being one to convey an interest in a homestead and having been made before entryman became entitled to patent, is forbidden by the federal law and is void.

Although reluctant to announce views upon questions as to which there is no real occasion for the court at this time to speak, I cannot permit to go unchallenged conclusions deemed erroneous touching such vital matters as the property rights of husband and wife.

First, let us consider the majority's pronouncement that husband and wife are powerless to change the status of separate estate to community property. There is no magic in the mere status of the property of husband and wife, whether separate or community. It is within the province of the legislature to permit husband and wife to deal with such property as it sees fit or to restrict their dealings in respect of such property as it may prescribe. It has limited the husband's right to convey community real estate without the wife's joinder, 1929 Comp., § 68-403; and has withheld from the wife predeceasing her husband the power of testamentary disposition over her share of the community. Id., § 38-104. But it has given to both husband and wife plenary power to contract with each other. Sections 68-201 and 68-510 of the New Mexico Statutes Annotated read:

"68-201. Husband and wife may make contracts. 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 occuping confidential relations with each other. L. '07, Ch. 37, § 4; Code '15, § 2750."

"68-510. How far may alter their legal relations. A husband and wife cannot by any contract with each other alter their legal relations, except of their property, and except that they may agree in writing, to an immediate separation, and may make provisions for the support of either of them and of their children during their separation. L. '07, Ch. 37, § 5; Code '15, § 2782."

They were enacted as sections 4 and 5 of chapter 37, New Mexico Session Laws of 1907. The majority say we adopted the statute from California. This seems likely from the almost identical language employed. If we did, we also adopted the construction theretofore placed on the statute by the Supreme Court of California in Yoakam v. Kingery, 126 Cal. 30, 58 P. 324, and In re McCauley's Estate, 138 Cal. 546, 71 P. 458. In the McCauley Case, decided four years prior to the time we enacted section 68-201 (of which § 158, Cal.Civ. Code is almost an exact counterpart) the Supreme Court of California said [page 459]: "The right of the husband to convey property to his wife is as complete as his right to convey to any other person. Section 158, Civ.Code; Hamilton v. Hubbard, 134 Cal. [603], 606, 65 P. 321,66 P. 860; McDougall v. McDougall, 135 Cal. 316, 67 P. 778. In this state a husband and wife may, by contract between them, alter their relations as to property; and they may, by valid agreement, transmute their separate estate into community property. Yoakam v. Kingery, 126 Cal. 30, 58 P. 324, and for like reason may transmute their community property into the separate property of one of the contracting parties."

It is a cardinal rule of statutory construction, recognized in early territorial days and adhered to consistently since statehood, that in adopting the statute of a sister state the legislature adopts the construction theretofore placed upon it by the highest court of such state. The rule rests upon presumed legislative intent. Armijo v. Armijo, 4 Gild. 57, 13 P. 92; Perea v. Colorado National Bank, 6 N.M. 1, 27 P. 322; Lutz v. Atlantic Pacific R. Co., 6 N.M. 496, 30 P. 912, 16 L.R.A. 819; Reymond v. Newcomb, 10 N.M. 151, 61 P. 205; De Baca v. Wilcox, 11 N.M. 346, 68 P. 922; Romero v. Atchison, T. S.F. Ry. Co., 11 N.M. 679, 72 P. 37; Bremen Min. Mill. Co. v. Bremen, 13 N.M. 111,79 P. 806; Dow v. Simpson, 17 N.M. 357, 132 P. 568; Palmer v. Town of Farmington, 25 N.M. 145, 179 P. 227; In re Vigil's Estate,38 N.M. 383, 34 P.2d 667, 93 A.L.R. 1506.

I am not unmindful of the qualification of the rule noticed in Armijo v. Armijo, supra, quoted in the prevailing opinion, that for good reasons the courts of the adopting state may refuse to follow the construction theretofore given such statute by the courts of the state from which adopted. It is to be mentioned that in the Armijo Case the territorial court, while noticing the exception, followed the general rule. It is a sufficient reason for rejecting a prior construction with the adoption of a statute that it is unreasonable or that it is opposed to the public policy of the adopting state. It must be a reason strong enough to overthrow the presumed legislative intent (and the presumption is strong, Union Oil Associates v. Johnson, 2 Cal. 2d 727,43 P.2d 291, 98 A.L.R. 1499) that in adopting the statute it adopted its previous construction in the sister state. Certainly, it cannot be said that the previous holding of the California Supreme Court that this statute authorized an agreement between husband and wife, transmuting separate estate into community property and vice versa, is contrary in any wise to our public policy. The majority do not so assert. They merely apprehend dangers from the claimed extension of the doctrine arising since the asserted adoption and recognized both by decisions of the California District Court of Appeals and by the Supreme Court of that state. See In re Henderson's Estate, 128 Cal. App. 397, 17 P.2d 786; Martin v. Pritchard, 52 Cal. App. 720, 199 P. 846; Vieux v. Vieux, 80 Cal. App. 222, 251 P. 640; In re Wahlefeld's Estate,105 Cal. App. 770, 288 P. 870; Perkins v. Sunset Tel. Tel. Co.,155 Cal. 712, 103 P. 190.

The only danger pointed out by the majority is that reflected in the portion of the opinion quoted by them from In re Henderson's Estate, supra, viz., the recognition of oral agreements claimed to have been made with deceased persons. However, in that very case, the oral agreement being completely executed was enforced. I fail to see the claimed extension of the doctrine in California save in this particular. The two cases decided by the California Supreme Court before our enactment of the statute, Yoakam v. Kingery and In re McCauley's Estate, supra, dealt with written agreements for transmuting property; in the Yoakam Case one converting separate estate into community property and in the McCauley Case vice versa.

Even though the majority apprehend danger from the subsequent California decisions which hold that a completely executed oral agreement between husband and wife accomplishing such transformation is valid and enforceable, this affords no logical ground for rejecting the construction attending the claimed adoption, to-wit, that our section 68-201 (Cal.Civ. Code, § 158) authorizes an agreement of transmutation between the spouses.

Indeed, I am willing to concede that § 68-201 does not profess to speak upon the question whether the contracts between husband and wife there authorized shall be oral or in writing. They are simply empowered to make any contract between themselves regarding property which either might if unmarried, etc. The form of any such contract necessarily is left to governing general or statutory law. Yet unwarranted apprehensions, it seems to me, entertained by the majority respecting an oral contract of the kind here involved, have driven them to a holding that the statute does not authorize such a contract even though it be in writing.

The prevailing opinion places chief reliance on the case of Kellett v. Trice, 95 Tex. 160, 66 S.W. 51, holding husband and wife are powerless to change the status of property from separate to community. But the significant fact that Texas apparently had no statute conferring such broad powers of contracting upon husband and wife as our § 68-201, although conceded by the majority, is dismissed with the remark that this weighty circumstance is "beside the case." I think it controls the case relied upon.

Now what is the effect of the majority holding? They must concede that plenary power exists in husband and wife to make conveyances inter vivos. 1929 Comp., § 68-403; McDaniel v. McDaniel, 36 N.M. 335, 15 P.2d 229; Trigg v. Trigg, 37 N.M. 296,22 P.2d 119. This power was held to exist even before the amendment to § 68-403 by L. 1927, c. 84. McDaniel v. McDaniel, supra. In this case we said [page 232]: "The amendment of 1927 added nothing to the powers already possessed by husband and wife as to dealings between themselves. Chapter 84, Laws of 1915, did not as respects dealings between husband and wife repeal or modify the provisions of sections 68-201, 68-510, 68-511, Comp. 1929 (sections 4, 5, and 6, c. 37, Laws 1907), which specifically authorize separation agreements and empower husband and wife to enter into any engagement with the other, respecting property, which either might, if unmarried. Construing identical statutes in Sanguinetti v. Sanguinetti, 51 Cal. App. 347, 196 P. 799, 801, the California Court of Appeals said: `The plain terms of the statute authorize the husband or the wife to convey to the other all title and interest in either separate or community property.' See, also, Brown v. Brown, supra [83 Cal. App. 74, 256 P. 595]; and Chadwick v. Chadwick, supra [95 Cal. App. 690, 273 P. 86]."

Henceforth, if the husband possessing separate estate agrees with the wife it shall become a part of the community, notwithstanding the plenary power to contract given by § 68-201 (held sufficient by the California Supreme Court to authorize just such an agreement), he is powerless to effectuate his purpose. A written agreement duly acknowledged and placed of record reciting that he holds title to his separate real estate as a part of the community is unavailing to make it so or to require the wife's joinder in any attempted conveyance thereof. It is still his separate estate. If he convey an undivided half interest to the wife by a deed containing recitals that the purpose of the conveyance is to attach community character to the entire interest and to be henceforth treated as such, his act is futile. The deed is either abortive as attempting an impossible thing or the wife takes the one-half interest as her separate estate and may convey without the husband's joinder, freed of the conditions recited.

I don't believe this is the law. I think it out of harmony with the true purpose sought to be accomplished by the enactment of § 68-201. It is contradicted by the reemphasized declaration of legislative intent present in L. 1927, c. 84 (§ 68-403) expressly authorizing deeds directly from husband to wife or vice versa. This is the true view unless, as I affirm is not the case, there is some magic formula present in the mere status or character of community property which spouses are powerless to create or duplicate by contract. I do not think the majority so contend. They must admit the legislature could authorize what they say is now denied. But the California Supreme Court has said identical language does authorize such an agreement between husband and wife. It already had said so when we enacted this statute. I agree with the California Supreme Court and I think any other view robs the statute of an important element of intent entertained by the legislature at the time of its enactment if, as the majority say, it is an adopted statute. I may add that without the aid of an adopted construction I should reach the same conclusion as to the true meaning of the act. The Supreme Court of Washington, in the case of Foster v. Floyd, 113 Wash. 312, 194 P. 407, under statutes of similar import to ours and to those of California, sustains the right of husband and wife by agreement to transmute property from separate into community and vice versa.

Nor am I out of sympathy with the later California decisions cited supra holding that an oral agreement to the same end fully performed will be enforced. In Caudill v. Caudill, 39 N.M. 248,254, 44 P.2d 724, 727, we noticed the California rule, saying: "That a husband and wife may change the character of their property from separate to community and vice versa without a written agreement has been asserted by the California courts. See In re Sill's Estate, 121 Cal. App. 202, 9 P.2d 243."

We were not called upon to speak authoritatively upon the subject in the Caudill Case and passed the question except to express the opinion that it was not unreasonable for attorneys to entertain the view that such was the law here. But we have held that under certain conditions complete performance and even part performance would relieve against the rigors of the Statute of Frauds. Harris v. Hardwick, 18 N.M. 303, 137 P. 581; Osborne v. Osborne, 24 N.M. 96, 172 P. 1039. Just why the requirement of a writing in the several instances covered by the Statute of Frauds should be any less sacred than the requirement of a writing in marriage settlements and separation agreements (§ 68-203; see Hussey v. Castle, 41 Cal. 239), the majority have not attempted to point out. And yet, as noted above, the absence of a writing is not fatal where certain conditions obtain notwithstanding the requirements of the Statute of Frauds.

Finally, it is said that if the agreement (that the government homestead entry, when acquired, should be deemed community property) is not bad for any of the several reasons already advanced, it violates U.S.C.A., Title 43, Ch. 7, § 162 (R.S. § 2290), requiring an affidavit from entryman containing among other things a statement: "That he or she has not directly or indirectly made, and will not make, any agreement or contract in any way or manner, with any person or persons, corporation or syndicate whatsoever, by which the title which he or she might acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person, except himself, or herself," etc.

None of the cases cited discloses a situation such as that presented in the case at bar. I do not think a case in point can be found. We therefore must decide the question upon principle with such aid as we can find from statements in adjudicated cases.

Buchser v. Buchser, 231 U.S. 157, 34 S. Ct. 46, 58 L. Ed. 166, is cited in the prevailing opinion. It was a bill to quiet title. Plaintiff, a married man, made entry and acquired title under patent to the land in question under the homestead laws of the United States. Thereafter, his wife died and he instituted this suit to quiet title against the children of the marriage as defendants, alleging they claimed an interest in the land. The defendants interposed a demurrer which was sustained by the trial court and in this opinion by Mr. Justice Holmes the judgment of the trial court was affirmed. It is interesting to note that the case arose in Washington, a community property state. The contention was that "by the laws of the state of Washington, in which the property is situated, it became community property unless the statutes of the United States forbid." Among other things, the court said: "In the present case the acquisition under the United States law is complete, and that law has released its control before the state law lays hold, and, upon grounds in no way connected or interfering with the policy of Congress, brings the community regime into play. The specialfamily relations thus created are not like contracts with thirdpersons impliedly forbidden by the act of March 3, 1891, chap.561, § 5, 26 Stat. at L. 1097, amending Rev.Stat. § 2290,U.S.Comp.Stat. 1901, p. 1389 [43 U.S.C.A. § 162]. They areconsistent with the policy of the statute, which is to enable thesettler and his family to secure a home. See § 2291,U.S.Comp.Stat. 1901, p. 1390 [43 U.S.C.A. § 164]." (Italics supplied).

U.S.C.A., Title 43, § 164 (R.S. § 2291), gives to the widow, upon the death of the entryman prior to final proof, a preferential right to complete the homestead requirements and make final proof. This right seems to be in no way contingent upon the time of entry with reference to marriage. Indeed, if entryman had completed all but six months residence on his homestead, then married and died prior to final proof, under this statute it seems his wife could exercise this preferential right. This statute but emphasizes the fact that the fundamental purpose of the public land laws is to provide a home for a man and hisfamily. As Mr. Justice Holmes points out in the Buchser Case, it is only by implication at best that an agreement with third persons prior to patent to transfer an interest in the homestead is forbidden by U.S.C.A., title 43, § 162. To countenance such agreements would defeat the very purpose of the homestead law, viz., to provide a home for the entryman and his family. On the other hand, nothing in an agreement of the sort here involved, that the property should be considered community, impinges on this broad purpose of the homestead laws. Indeed, such an agreement tends to render that purpose more secure. If the property is separate, the husband alone may dispose of it. If community, the wife must join. If there be any difference in the degree of attachment to the home on the part of either husband or wife, the tie is stronger in the wife. Her community interest and the requirement for her joinder in the deed of conveyance might in some instances, and no doubt would, be the very thing that would perpetuate the status of the homestead entry as a home, the purpose intended by the public land laws.

So here, the husband's pre-nuptial agreement, made after entry, that for her aid and assistance in fulfilling the conditions for patent, the wife shall have a community interest in the homestead, may be likened in effect to her growing, though contingent, interest to a like share in the property, even where entered after marriage and classified as community property from the beginning. In both cases the wife's expectant interest is wholly dependent upon the issuance of a patent. Where the entry is possessed of a community character from its inception, as said in the Buchser Case, that fact constitutes no violation of the federal law because inoperative before patent. The moment patent issues the community property law of the state comes into play and perfects the wife's interest. Likewise, such an agreement as that before us remains inoperative and in suspense insofar as the vesting of the wife's community share be concerned, until patent. It then vests in her. And since, in both cases, the result is in furtherance of the aim of the public land laws, the acquisition of a home for the entryman and his family, neither result is proscribed by federal law.

These considerations, in the absence of controlling authorities to the contrary, bring me to the conclusion that this kind of an agreement does not violate either the letter or the spirit of the federal homestead laws.

It follows from what has been said that I disagree with the majority opinion. I therefore dissent.

BICKLEY, J., concurs.