2021 New Mexico Statutes
Chapter 42 - Actions and Proceedings Relating to Property
Article 6 - Quieting Title
Section 42-6-1 - By and against whom action may be brought; several tracts may be included in one action.

An action to determine and quiet the title of real property may be brought by anyone having or claiming an interest therein, or by the holder of any mortgage, mortgage deed, trust deed or any other written instrument which may operate as a mortgage, in an action brought to foreclose the said mortgage, mortgage deed, trust deed or such other written instrument, whether in or out of possession of the same, against any person or persons, claiming title thereto, or parcel or portion thereof, or lien thereon, whether such lien be a mortgage or otherwise. Any number of tracts of land may be embraced in the same action, whether claimed by different persons or not; and in instances where a tract of land title to which is sought to be quieted lies within more than one county such action may be brought in any county in which part of said tract lies. Title may be quieted against the owner or holder of any mortgage, claim of lien or other encumbrance, where the owner or holder of such mortgage, lien or encumbrance has permitted same to become barred by statute of limitations, and where the record or documentary evidence reflects that the required time to bar such mortgage or other lien has elapsed, the same shall constitute prima facie evidence that the debt or obligation and lien securing same is barred, and the owner or holder of such mortgage, lien or claim shall be estopped from asserting any rights thereunder in such suit.

History: C.L. 1897, § 2685 (273), added by Laws 1907, ch. 107, § 1 (273); Code 1915, § 4387; Laws 1925, ch. 21, § 1; 1927, ch. 109, § 1; C.S. 1929, § 105-2001; Laws 1937, ch. 174, § 1; 1941 Comp., § 25-1301; Laws 1945, ch. 34, § 1; 1951, ch. 96, § 1; 1953 Comp., § 22-14-1.

Cross references. — For joinder of parties plaintiff, see 42-6-6 NMSA 1978.

For state consent to be sued in quiet title actions, see 42-6-12 to 42-6-16 NMSA 1978.

For tax assessment or payment in name of nonowner not cloud on title, see 47-1-26 NMSA 1978.

I. GENERAL CONSIDERATION.

After-acquired title. — Where there are two chains of title from one initial grantor, the after-acquired title doctrine vests title in the first grantee whose chain of title began before the initial grantor obtained clear title and estops the second grantee whose chain of title began after the initial grantor obtained clear title and after the first grantee's chain of title began from claiming title to the land as against the first grantee. Rendleman v. Heinley, 2007-NMCA-009, 140 N.M. 912, 149 P.3d 1009.

Quiet title action against one with deed, but questionable possession. — Where plaintiff had a deed to the land and actual possession of part of the land, giving plaintiff constructive possession of all of the land, and defendant had a deed to the land but did not have actual possession of the land and had done only irregular, occasional, and equivical acts to oust plaintiff, plaintiff was entitled to a decree quieting title to the land in plaintiff. Gentile v. Kennedy, 1896-NMSC-002, 8 N.M. 347, 45 P. 879 (decided under former law).

Effect of unconfirmed land grant. — The owner of an interest in an unconfirmed Mexican or Spanish grant must first have the grant confirmed in order to bring suit to quiet title. Lockhart v. Leeds, 1900-NMSC-040, 10 N.M. 568, 63 P. 48, rev'd on other grounds, 195 U.S. 427, 25 S. Ct. 76, 49 L. Ed. 263 (1904) (decided under former law).

Plaintiff's interest determined by instrument creating it. — The nature of a plaintiff's interest in a quiet title suit must be determined from the provisions of the instrument that created that interest. Christy v. Petrol Res. Corp., 1984-NMCA-108, 102 N.M. 58, 691 P.2d 59.

Suit brought in U.S. court only in exceptional circumstances. — Where controversy was between two groups of cotenants, the appellees not having been ousted, could not maintain an action in ejectment and no plain, adequate and complete remedy at law being available, in exceptional circumstances of this kind where diversity of citizenship and jurisdictional amount are present, suit to quiet title may be brought in the United States court. Harlan v. Sparks, 125 F.2d 502 (10th Cir. 1942).

The rule under federal law that suits in equity shall not be sustained in a United States court where there is a plain, adequate, and complete remedy at law has application even though the equity jurisdiction of state courts has been enlarged to provide that a suit to quiet title may be maintained against one in possession. Harlan v. Sparks, 125 F.2d 502 (10th Cir. 1942).

Suit may be maintained in federal court under a state statute against an adverse claimant, when by the pleadings an adequate remedy at law is excluded. Baum v. Longwell, 200 F. 450 (D.N.M. 1912).

When action not barred by laches. — An action to quiet title is not barred by laches when defendant (1) had knowledge plaintiff would assert right, since plaintiff's predecessor had informed defendant and his predecessors of encroachment and offered to lease the disputed area and (2) will not injure or prejudice the defendant. Thomas v. Pigman, 1967-NMSC-045, 77 N.M. 521, 424 P.2d 799.

Effect of inserting name in deed on burden of proof. — Suit to quiet title to land held under a deed in which the grantee was not named, but whose name was later inserted, throws the burden upon the plaintiff of proving the instrument. Jones v. Rocky Cliff Coal Mining Co., 1921-NMSC-018, 27 N.M. 50, 198 P. 287.

Court will not disturb boundary finding when supported by evidence. — Where, in quiet title action, the court has considered all of the evidence before it and has determined the true location of the boundary, and the boundary is different from the one acquiesced in over the years, on review the court will not disturb such finding when supported by substantial evidence. Thomas v. Pigman, 1967-NMSC-045, 77 N.M. 521, 424 P.2d 799.

II. INTEREST IN TITLE.

Quiet title action brought by anyone, in or out of possession. — This section provides that an action to quiet title may be brought by anyone whether in or out of possession. Caranta v. Pioneer Home Improvements, Inc., 1970-NMSC-030, 81 N.M. 393, 467 P.2d 719 (1970).

Quiet title action brought by anyone claiming interest. — Quiet title actions may be brought by anyone, in or out of possession, claiming an interest in real property. Currier v. Gonzales, 1967-NMSC-259, 78 N.M. 541, 434 P.2d 66; Pacheco v. Martinez, 1981-NMCA-116, 97 N.M. 37, 636 P.2d 308.

The action may be maintained by one out of possession against anyone claiming title, out of possession. Corman v. Cree, 100 F.2d 486 (10th Cir. 1938).

An action to determine and quiet title of real property may be brought by anyone having or claiming an interest therein whether in or out of possession of the same against any person claiming title thereto. Marques v. Maxwell Land Grant Co., 1904-NMSC-033, 12 N.M. 445, 78 P. 40.

One holding judgment lien on property may bring suit. Stanton v. Catron, 1896-NMSC-003, 8 N.M. 355, 45 P. 884 (decided under former law).

Proof of title basis of action. — Any person having or claiming an interest in real property, whether in or out of possession, may bring his bill to determine and quiet title against any person claiming title thereto, but proof of title has ever been the basis of this action. Stanton v. Catron, 1896-NMSC-003, 8 N.M. 355, 45 P. 884 (decided under former law).

Possession under deed from grantor in possession is sufficient evidence of title to maintain the action. Holthoff v. Freudenthal, 1916-NMSC-086, 22 N.M. 377, 162 P. 173.

Plaintiff's recovery based upon strength of his title. — In a suit to quiet title the plaintiff must recover on the strength of his own title and not on the weakness of the title of his adversary. Cubero Land Grant v. DeSoto, 1966-NMSC-131, 76 N.M. 490, 416 P.2d 155; Esquibel v. Hallmark, 1978-NMSC-080, 92 N.M. 254, 586 P.2d 1083; Perea v. Martinez, 1980-NMSC-116, 95 N.M. 84, 619 P.2d 188.

Plaintiff's recovery not based upon weakness of his adversary's claim. — A plaintiff in an action to quiet title to real estate must recover, if at all, upon the strength of his own title and not upon the weakness of his adversary's claim. Rock Island Oil & Ref. Co. v. Simmons, 1963-NMSC-192, 73 N.M. 142, 386 P.2d 239.

Plaintiffs' prospects for recovery in a quiet title action must rest upon the strength of their own title and not upon the weakness of the defendants' claim. Lerma v. Romero, 1974-NMSC-089, 87 N.M. 3, 528 P.2d 647.

Interest in title required. — The interest required by this section must be an interest in the title. Holthoff v. Freudenthal, 1916-NMSC-086, 22 N.M. 377, 162 P. 173.

III. SCOPE OF ACTION.

Ancillary issues not within the scope of the quiet title action. — Where the state filed a quiet title action to establish title to a road across private land to provide access to state lands; the private landowner claimed and offered evidence to prove that the true boundary line between the private land and the state land was not the long-accepted boundary line and that the road actually terminated on the private land, not on the state land; the boundary issue was not fully litigated in the district court, and potentially indispensable parties with an interest in title to the land affected by the private landowner's proposed boundary adjustment were not parties to the action. The only issue that the district court could decide was title to the road and access, not the issue of the location of the boundary. State ex. rel King v. UU Bar Ranch Ltd., 2009-NMSC-010, 145 N.M. 769, 205 P.3d 816, aff'g in part 2005-NMCA-079, 137 N.M. 719, 114 P.3d 399.

Action serves to remove cloud from title. — Title may be quieted against any person claiming title to lands in suit or lien thereon. A mortgage by force of statute is a cloud upon the title against which the decree will operate. State ex rel. Truitt v. District Court, 1939-NMSC-061, 44 N.M. 16, 96 P.2d 710.

Action is not limited to removal of mere clouds on title. It embraces any claim of interest in land adverse to plaintiff. Corman v. Cree, 100 F.2d 486 (10th Cir. 1938).

Judgment lien, although barred by statute of limitations, still cloud on title. — Even though a judgment lien has been barred by statute of limitations, it nevertheless remains a cloud upon the title and a party is entitled to seek a decree to discharge such cloud, this being especially true in view of this section. Pugh v. Heating & Plumbing Fin. Corp., 1945-NMSC-031, 49 N.M. 234, 161 P.2d 714.

When quiet action suit improper remedy. — While the statute relative to actions to quiet title expressly provides that such action may be brought by a person either in or out of possession of the quieted premises, in the absence of the waiver, the defendant in possession of the premises is entitled as a matter of right to a jury trial, and thus, ejectment would be the proper remedy to be invoked in such a situation. Payne Land & Livestock Co. v. Archuleta, 180 F. Supp. 651 (D.N.M. 1960).

Foreclosure action and quiet title claim triable in single proceeding. — It would be logically inconsistent to hold that it is permissible to try both a foreclosure action and a quiet title claim in a single proceeding if both are asserted by the plaintiff, but it is not permissible to join them in one case if one is asserted by the plaintiff and the other arises in a defendant's counterclaim or cross-claim; this incongruous holding would be contrary to the purpose of Rule 13, N.M.R. Civ. P. (now Rule 1-013 NMRA). Ortega, Snead, Dixon & Hanna v. Gennitti, 1979-NMSC-056, 93 N.M. 135, 597 P.2d 745.

Quiet title is not proper remedy for establishing trust in land. Petrakis v. Krasnow, 1949-NMSC-073, 54 N.M. 39, 213 P.2d 220.

Damages are not recoverable in suit to quiet title. Chavez v. Gomez, 1967-NMSC-011, 77 N.M. 341, 423 P.2d 31.

Attorney fees not recoverable in suit to quiet title. — In suit to quiet title, no damages or attorney's fees are allowable. Rosser v. Rosser, 1938-NMSC-026, 42 N.M. 360, 78 P.2d 1110.

Equitable interest in real estate may be quieted but the interest claimed must be an interest in the title. Rock Island Oil & Ref. Co. v. Simmons, 1963-NMSC-192, 73 N.M. 142, 386 P.2d 239.

Judgment creditor or his assignee unable to maintain answer or counterclaim. — Neither a judgment creditor, nor his assignee, can maintain an answer or counterclaim in a suit to quiet title under this section and 42-6-2 NMSA 1978. Security Inv. & Dev. Co. v. Capital City Bank, 1917-NMSC-018, 22 N.M. 469, 164 P. 829.

IV. PROCEEDINGS..

Venue in county where property located. — Section 38-3-1D(1) NMSA 1978 is similar to the special venue provision contained in this section. Both permit an action concerning land to be brought in the county in which the land or any portion of it is located. Gonzales v. Gonzales, 1993-NMCA-159, 116 N.M. 838, 867 P.2d 1220.

Action to quiet title to town land grant. — Where the board of trustees of a town land grant had the power to sue and be sued and held title to the land grant that was not subject to a trust for the benefit of the heirs of the land grant, the court held over the board of trustees to quiet title to the land grant in the purchaser of the land grant at a foreclosure sale and the heirs of the land grant were not necessary and indispensable parties. Shearton Development Co., L.L.C. v. Town of Chilili Land Grant, 2003-NMCA-120, 134 N.M. 444, 78 P.3d 525, cert. denied, 2003-NMCERT-001, 134 N.M. 611, 81 P.3d 554.

In quiet title action proper venue is jurisdictional. Pan Am. Petroleum Corp. v. Candelaria, 403 F.2d 351 (10th Cir. 1968) (decided under former law).

Court's jurisdiction limited to lands in county, prior to amendment. — A quiet title suit brought in 1947 affected interests in land located in two counties. The statute then in effect § 25-1301, 1941 Comp., made no provision for bringing suit in one county covering land in another. The district court's jurisdiction was thus limited to lands in the county where the action was brought. Pan Am. Petroleum Corp. v. Candelaria, 403 F.2d 351 (10th Cir. 1968) (decided under former law).

Service of process. — Service may not be by publication upon "unknown owners" if the plaintiffs have knowledge or the means of knowledge as to persons in actual adverse possession. Pankey v. Ortiz, 1921-NMSC-007, 26 N.M. 575, 195 P. 906; Priest v. Trustees of Town of Las Vegas, 232 U.S. 604, 34 S. Ct. 443, 58 L. Ed. 751 (1914), aff'g 1911-NMSC-072, 16 N.M. 692, 120 P. 894.

Constructive service proper where names and addresses of defendants are not reasonably ascertainable. — In a collateral attack on a 1948 quiet title judgment in San Juan county, in which service of process was accomplished by publication in a weekly newspaper, and where the plaintiffs in the 1948 complaint alleged that after diligent search and inquiry, they had been unable to learn or determine the names, places of residence, addresses and whereabouts of any unknown heirs of any deceased defendants or if any defendants were still living and residing in New Mexico, they could not be located because they had secreted themselves so that personal service of process could not be effected, and where the return of service completed by the sheriff of San Juan county indicated that after diligent search and inquiry, any predecessors-in-interest could not be located and personally served with process, the district court correctly found that the suit in this case constituted an improper collateral attack on the 1948 judgment quieting title in defendants' predecessors-in-interest, because constructive notice given in the underlying case was sufficiently reasonably calculated under the circumstances as they existed in 1948; constructive service of process by publication satisfies due process if the names and addresses of the defendants to be served are not reasonably ascertainable. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2017-NMSC-004, rev'g 2015-NMCA-004, 340 P.3d 1277.

Notice must comport with due process. — In order to comport with due process, quiet title plaintiffs must undertake a diligent and good faith effort to personally serve the necessary parties with process before attempting to serve process by constructive notice, which is not favored and is permissible only out of necessity. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2015-NMCA-004, cert. granted, 2014-NMCERT-012.

Equitable principles in quiet title action. — In quiet title action, where the evidence was insufficient to show that the complaining party was given sufficient notice that they were entitled to enforce their ownership rights, but delayed in asserting their rights or neglected to do so, the district court erred in granting summary judgment based on equitable principles of laches, waiver and judicial estoppel. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2015-NMCA-004, cert. granted, 2014-NMCERT-012.

Where judgment quieting title to property improper. — In quiet title action, plaintiffs' constructive service upon defendants, who had an ownership interest in the property, failed to comply with due process, and therefore, quiet title action was void as to defendants, where plaintiffs failed to undertake a diligent and good faith effort to personally serve defendants by failing to either investigate evidence of the defendants' location as required, or to fully apprise the district court of the defendants' state of residence which was revealed during transactions involving the property. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2015-NMCA-004, cert. granted, 2014-NMCERT-012.

Suit to cancel mortgage deed requires personal service. — A suit to cancel a mortgage deed is a proceedings in personam and not in rem, and required personal service of process within the state. Rosser v. Rosser, 1938-NMSC-026, 42 N.M. 360, 78 P.2d 1110.

All parties in possession not indispensable. — In a quiet title suit, owners of some of the property bordering on a right-of-way are proper but not indispensable parties in suit by party claiming title to part of property held by other parties. All parties in possession need not be joined. Alston v. Clinton, 1963-NMSC-227, 73 N.M. 341, 388 P.2d 64.

Where joinder of defendants defeats court's jurisdiction. — A court having equitable powers cannot take jurisdiction in suit by one plaintiff against several defendants, to prevent multiplicity of suits, when the defendants have nothing in common except their source of color of title, and each defendant has a distinct, different, and separate defense. Pankey v. Ortiz, 1921-NMSC-007, 26 N.M. 575, 195 P. 906.

Contents of complaint. — Even after a severance has occurred, a complaint in a quiet title suit describing the property and alleging a fee simple ownership is equivalent to a claim of ownership of the fee in the surface and in the minerals. If a plaintiff's claim is solely to the surface estate, then his complaint should so state. If his claim is solely to the mineral estate, then his complaint should so state. Kaye v. Cooper Grocery Co., 1957-NMSC-049, 63 N.M. 36, 312 P.2d 798.

Complaint cannot be dismissed on ground that equities cannot be adjudicated in a quiet title action where a title holder in possession brings the suit to remove clouds caused by mechanics' liens. Petrakis v. Krasnow, 1949-NMSC-073, 54 N.M. 39, 213 P.2d 220.

Section not at variance with Rule 1-013 NMRA. — There is nothing specific nor inherent in this section at variance with the unrestrictive counterclaim provisions of Rule 1-013 NMRA. Ortega, Snead, Dixon & Hanna v. Gennitti, 1979-NMSC-056, 93 N.M. 135, 597 P.2d 745.

Right to jury trial dependent upon possession. — In an action to quiet title, no right to jury trial exists where neither party is in possession or the moving party is in possession. Baca v. Anaya, 1908-NMSC-009, 14 N.M. 382, 94 P. 1017.

Filing of counterclaim waives defendant's right to jury trial. — A defendant is deemed as having waived his right to jury trial, even though ejectment would have been plaintiff's proper remedy instead of suit to quiet title, where defendant filed a counterclaim to quiet title or asks for other equitable relief. Quintana v. Vigil, 1942-NMSC-018, 46 N.M. 200, 125 P.2d 711, overruled by Evans Fin. Corp. v. Strasser, 1983-NMSC-053, 99 N.M. 788, 664 P.2d 986.

Judgment self-operating and establishes interest. — The action to quiet title is a substantive adjudication of title. The judgment is self-operating. By the judgment itself the interest is established. In such an action all matters affecting the title of the parties to the action may be litigated and determined, and the judgment therein is final and conclusive. Kaye v. Cooper Grocery Co., 1957-NMSC-049, 63 N.M. 36, 312 P.2d 798.

Where judgment for husband and wife coplaintiffs does not give him estate. — Where title to property was conveyed to wife by her husband, and although wife did not thereafter reconvey any interest to her husband, husband joined with wife as plaintiff in bringing suit to quiet title on property standing in her name, and title to the property was quieted in the two of them, husband did not as a result of such judgment alone acquire any interest in the property and children of husband therefore did not have an interest in the property under the laws of descent and distribution following death of husband intestate. Saiz v. Saiz, 1964-NMSC-229, 74 N.M. 557, 395 P.2d 907.

Default judgment not set aside by subsequent suit. — A default judgment in a suit to quiet title, in which the plaintiff's right and title were based upon a tax deed, invalid because the taxes for which it was issued had been paid, cannot, in the absence of fraud, be set aside by a subsequent suit for that purpose, the doctrine of res judicata being applicable. Bowers v. Brazell, 1922-NMSC-014, 27 N.M. 685, 205 P. 715 (decided under former law).

Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).

Trujillo v. Padilla, 79 N.M. 245, 442 P.2d 203 (1968), commented on in 9 Nat. Resources J. 101 (1969).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 65 Am. Jur. 2d Quieting Title §§ 8, 34, 68 to 72.

Timber, right of owner of land to have his title quieted as to timber remaining after the expiration of the time fixed in a timber contract for its removal, 15 A.L.R. 111, 31 A.L.R. 944, 42 A.L.R. 641, 71 A.L.R. 143, 164 A.L.R. 423.

Reimbursement by owner as condition of cancelation of tax sale and deed because taxes had been paid prior to the sale, 26 A.L.R. 629.

Return of payments as condition of cancelation of land contract as cloud on title, 35 A.L.R. 274.

Fraud as affecting right of one not in possession to maintain suit to remove cloud on title, 36 A.L.R. 698.

What constitutes cloud on title, 78 A.L.R. 24.

Apparent invalidity of pretended title or lien as affecting its character as cloud, 78 A.L.R. 62.

Taxes or local improvement assessments, right of purchaser at invalid sale for, to reimbursement in action to quiet title, and provisions of the decree or judgment as to, 86 A.L.R. 1208.

Covenants, remedies of grantor who has conveyed with, against third person asserting title or interest hostile to covenant, 97 A.L.R. 711.

Rescission as essential to cancelation of instrument or lien voidable for fraud or failure of consideration, 109 A.L.R. 1032.

Remaindermen's right to sue, during continuance of life estate, to remove cloud on title, as affecting character of possession of grantee under deed from life tenant purporting to convey fee as adverse during life estate, 112 A.L.R. 1048.

Jurisdiction of justice's court (or similar court) of actions to remove, or growing out of removal of, cloud from title to land, 115 A.L.R. 540.

Nonresidence or absence of defendant from state as suspending statute of limitations where relief is sought, or could have been sought, by action to quiet title to local property, 119 A.L.R. 365.

Statute of limitation, or presumption of payment from lapse of time, mortgage barred by, as cloud entitling mortgagor to affirmative relief, 164 A.L.R. 1393.

Contract for joint, mutual, and reciprocal wills, protection of rights of parties under, 169 A.L.R. 53.

Fences as factor in fixing location of boundary line - modern cases, 7 A.L.R.4th 53.

74 C.J.S. Quieting Title §§ 1, 95.