Fulwiler v. Traders & General Insurance Company

On Motion for Rehearing

McGHEE, Justice.

The appellant, Traders & General Insurance Company, on motion for rehearing, calls our attention to the fact inadvertently overlooked by us that § 64-5-1, N.M. S.A., 1953 Comp., cited and quoted in our earlier opinion in this case, did not become effective until July 1, 1953, a time after the conditional sale contract here involved was assertedly filed with the New Mexico Motor Vehicle Department. Therefore, it is true that such section had no application to the present case, but another section of our statutes was at that time applicable: Section 68-115, N.M.S.A. 1941 Comp., Ch. 140, § 10, Laws 1941, as amended, Ch. 73, § 1, Laws 1943, and repealed by Ch. 138, § 121 (15), Laws 1953. It reads:

“ ‘Every chattel mortgage, conditional sales contract, lease, purchase lease, sales lease, contract or other instrument in writing having the effect of a mortgage or a lien or encumbrance upon, or intended to hold, the title to any vehicle in the former owner, possessor or grantor shall hereafter be filed with the motor vehicle department. Except that encumbrances against vehicles not titled in New Mexico shall be filed with the county clerk of the county where the vehicles are so encumbered.’ ”

Thus, while the language of our present statute differs from its predecessor, for present purposes, the force of each is the same. In Attorney General’s Opinion No. 3825, 1941-1942, p. 71, et seq., addressed to the Motor Vehicle Commissioner, the question was posed: “Under the new law, is it necessary to have contracts (filed with the Motor Vehicle Department) acknowledged by a Notary Public?” and answered as follows:

“The new law contains no statement as to the form and content of security devices. I am of the opinion that our general law still applies. Section 21-301, New Mexico Statutes Annotated, 1929 Compilation, (§ 50-11-1, 1953 Compilation), requires that security devices be acknowledged. In this connection I wish to advise you that when such an instrument is not properly acknowledged, it is not entitled to be filed in your office.”

It follows that although the original opinion filed in this case referred to a statute not in effect at the time material thereto, such error was harmless, as the decisive principle was fully applicable under the earlier statutes, and the disposition of this appeal under our earlier opinion is reaffirmed.

It is so ordered.

COMPTON, C. J., and LUJAN and SADLER, JJ., concur. KIKER, J., not participating.