2020 New Mexico Statutes
Chapter 47 - Property Law
Article 1 - Conveyances and General Provisions
Section 47-1-4 - [Conveyances authorized.]

Any person or persons, or body politic, holding, or who may hold, any right or title to real estate in this state, be it absolute or limited, in possession, remainder or reversion, may convey the same in the manner and subject to the restrictions prescribed in this chapter.

History: Laws 1851-1852, p. 373; C.L. 1865, ch. 44, § 1; C.L. 1884, § 2748; C.L. 1897, § 3939; Code 1915, § 4757; C.S. 1929, § 117-101; 1941 Comp., § 75-103; 1953 Comp., § 70-1-3.

Cross references. — For transfer of interest in public land, see 19-3-3 NMSA 1978.

For rights gained by adverse possession, see 37-1-21 and 37-1-22 NMSA 1978.

For conveyances to and by married persons, see 40-3-12 and 40-3-13 NMSA 1978.

For joinder of minor spouse in conveyance, see 40-3-15 NMSA 1978.

For conveyance of realty when one spouse disappears, see 40-3-16 NMSA 1978.

For conveyance by unincorporated associations, see 53-10-3 NMSA 1978.

For presumed grant of use of irrigation ditches, see 73-2-5 NMSA 1978.

Compiler's notes. — The words "this chapter" were substituted for the words "this act" by the 1915 Code compilers and referred to ch. 96 of the 1915 Code, compiled herein as 48-7-4 to 48-7-6, 47-1-1, 47-1-2, 47-1-4 to 47-1-7, 47-1-12 to 47-1-15, 47-1-17 to 47-1-22 and 47-1-25 NMSA 1978. In light of the 1991 amendment to 47-1-1 NMSA 1978 by L. 1991, ch. 234, § 3, the reference probably should be to Chapter 47 NMSA 1978.

A voidable deed to a good-faith bona fide purchaser is not subject to cancellation. — Where plaintiffs purchased property that was the subject of ongoing probate litigation in which the decedent's estate sought to set aside a deed from the decedent to the decedent's nephew on the grounds that the deed had been obtained by undue influence; the estate filed a notice of lis pendens after two years of litigation when plaintiffs' grantor purchased the property and was joined as a party to the probate litigation; the estate voluntarily released the lis pendens prior to the conclusion of the litigation when plaintiffs' grantor was dismissed without prejudice as a party to the probate litigation for insufficiency of process; and plaintiffs purchased the property after the lis pendens had been released, but prior to the conclusion of the litigation; plaintiffs gave value for the property and did not have constructive notice of the probate litigation; after plaintiffs purchased the property, the district court found in the probate litigation that the deed from the decedent to the decedent's nephew had been fraudulently obtained, the deed to plaintiffs was merely voidable and if plaintiffs had no actual notice of the probate litigation, plaintiffs would be good-faith bona fide purchasers and the deed of the property to plaintiffs would not be subject to cancellation. Kokoricha v. Estate of Keiner, 2010-NMCA-053, 148 N.M. 322, 236 P.3d 41.

Elements of easement by necessity. — To establish an easement by necessity, there must be unity of title, indicating that the dominant and servient parcels were owned as a single parcel prior to the separation, that the dominant parcel had been severed from the servient parcel, thereby curtailing access of the owner of the dominant parcel to and from a public roadway, and that a reasonable necessity existed at the time the dominant parcel was severed from the servient parcel. Ciolli v. McFarland Land & Cattle Co., Inc., 2017-NMCA-037, cert. denied.

Where plaintiffs, owners of a landlocked ranch in Quay County, sued an adjacent ranch to compel the recognition of an easement across that ranch to the public highway, the district court did not err in its judgment recognizing an implied easement by necessity for the benefit of plaintiffs' ranch, because it was undisputed that the two parcels of land were once owned as a single parcel prior to separation, that legal access to plaintiffs' landlocked property was curtailed by the severance of the original parcel of land, and that a reasonable necessity existed at the time the dominant parcel was severed from the servient parcel, because prior to the severance of the original parcel of land, there was only one legally enforceable access from the original parcel to the public highway, and the necessity for the easement existed at the time of severance. Ciolli v. McFarland Land & Cattle Co., Inc., 2017-NMCA-037, cert. denied.

Easement of necessity. — Where property owned by plaintiffs and defendants originally constituted a portion of the Las Vegas land grant; plaintiffs sought to establish an access easement to their property over a canyon road that ran through defendants' property; at the time of the severance of plaintiffs' property from the land grant, the only reasonable access that existed was from the canyon road; and the district court found that there was a necessity for the grantor to have reserved an easement through its former holdings, which were owned by defendants at the time of severance of plaintiffs' property, the canyon road was the only access available at the time of severance, plaintiffs did not have reasonable alternative access, and the canyon road had provided access to plaintiffs' property since time immemorial, plaintiffs were granted access easements over the canyon road by implication and necessity pursuant to and in conformity with the grants from the Las Vegas land grant. Los Vigiles Land Grant v. Rebar Haygood Ranch, L.L.C., 2014-NMCA-017.

Implied easement by necessity. — To find an implied easement by necessity, the necessity must have arisen as a result of a severance of rights held by a single owner, such as where a single parcel of land is divided into two parcels. The easement by necessity rests heavily upon the intent of the grantor, and unless there is a clear indication to the contrary, the grantor is presumed to have intended to have conveyed to his grantees a means of access to the property in question, so that the land may be beneficially utilized. Firstenberg v. Monribot, 2015-NMCA-062, cert. denied, 2015-NMCERT-006.

Where plaintiff claimed that he had an implied easement by necessity to access his electrical meter on defendant's property, testimony from the former owner of the property, that the property originally constituted a single lot upon which the houses of both plaintiff and defendant were located, and that when the former owner split the single lot into two lots granted an express easement for all existing utilities, supported the district court's decision that plaintiff had an implied easement by necessity for the transmission of electricity and for access to the switch and meter attached to defendant's property. Firstenberg v. Monribot, 2015-NMCA-062, cert. denied, 2015-NMCERT-006.

Easement created by land ownership and well-sharing agreement. — Where the owners of adjoining ranches entered into a written land ownership and well-sharing agreement to clarify the ownership of certain property and to provide for sharing of water from two wells; in the agreement, each landowner quitclaimed certain land to the other landowner on which a water well was located, each landowner reserved the right to go over and across the other landowner's land to obtain water for livestock, and each landowner agreed to maintain the water well on the landowner's land; and the agreement did not state the duration the agreement would be effective or state that it would bind the landowners' successors-in-interest, the agreement created a reciprocal easement appurtenant that ran with the land and placed a duty on each landowner and their successors-in-interest to maintain the water well that was located on the landowners' land and supply water to the other landowner. Skeen v. Boyles, 2009-NMCA-080, 146 N.M. 627, 213 P.3d 531.

Existence and scope of an express easement. — The existence and scope of an express easement are determined according to the intent of the parties, and the intent of the parties is derived from language of the agreement. The written language of an easement should be conclusive, and consideration of extrinsic evidence is generally inappropriate, but if the easement language is ambiguous, the parties' intention must be determined from the language of the instrument as well as from the surrounding circumstances. Mayer v. Smith, 2015-NMCA-060, cert. denied, 2015-NMCERT-004.

Where plaintiff owned property burdened by an easement, but erected a fence that encroached onto the easement, the district court erred in using extrinsic evidence to determine the parties' intent when the easement agreement at issue was unambiguous in that it listed the purpose of the easement, clearly set out the dominant estate holders, unequivocally set forth the dimensions and location of the easement, and the agreement's duration was unlimited. The district court erred in restricting the scope and ownership of the easement and in allowing plaintiff's fence to stand. Mayer v. Smith, 2015-NMCA-060, cert. denied, 2015-NMCERT-004.

Easements cannot be expanded, changed, or modified to create an additional burden on the servient estate. — The owner of the dominant estate cannot change the extent of the easement or subject the servient estate to an additional burden not contemplated by the grant of easement. Mayer v. Smith, 2015-NMCA-060, cert. denied, 2015-NMCERT-004.

Where plaintiff owned property burdened by an easement, but erected a fence that encroached onto the easement, the fact that the dominant estate had been divided did not create an additional burden on the servient estate because an increase in the number of persons holding the benefit of the servitude alone does not constitute an unreasonable increase in the burden, and where evidence established that there had been no change to the use of the easement since it was purchased in 1979 and that the easement had not been modified by the division of the dominant estate, the district court's finding of an additional burden to the servient estate was not supported by the evidence. Mayer v. Smith, 2015-NMCA-060, cert. denied, 2015-NMCERT-004.

Admissibility of extrinsic evidence to resolve ambiguities in easements. — Extrinsic evidence has been allowed to resolve ambiguities in easements when necessary terms are omitted, when the terms of an easement are subject to more than a single reasonable construction, to resolve conflicting terms of an easement, and when the granting language is not itself technically accurate. Dethlefsen v. Weddle, 2012-NMCA-077, 284 P.3d 452.

Easement was ambiguous in scope. — Where plaintiffs' deed conveyed a tract of land subject to a "fifty foot wide road easement to and across the property as shown on" a recorded plat; the plat described the easement as a "road & 50' wide easement follows approx. c/l of Monument Creek" and "easement extends to forest service road"; the plat showed that the easement originated at a forest service road on property on the east side of plaintiffs' property, traversed that property and then plaintiffs' property, and connected with property on the west side of plaintiffs' property; because the use of the term "road" was not definitive as to the specific nature and purpose of the easement, the easement failed to disclose terms necessary to an understanding of precisely what was conveyed; the easement failed to identify each of the dominate estate holders and to state the duration of the easement; the descriptions of the easement in the deed and in the plat were subject to different interpretations as to exactly what had been reserved; the fifty foot width of the road in a rural setting was unusual; the easement was unclear as to whether the road, the easement, or both, followed the center line of Monument Creek; the ambiguities in plaintiffs' deed were not resolved by the recorded deeds to the adjoining property, neither of which located or referenced the easement in wording consistent with each other or with plaintiffs' deed or the plat, specified a width or consistent specific use for the road, or stated whether the easement was appurtenant or in gross; and the deeds that created and referenced the easement were silent as to the inclusion of a lockable gate on the easement at any location, the scope of the easement was ambiguous as a matter of law with respect to the width of the road, the location of the road within or separate from the fifty-foot wide easement, the use, nature, and purpose of the road, and the permissibility of a lockable gate. Dethlefsen v. Weddle, 2012-NMCA-077, 284 P.3d 452.

Sufficient evidence of the creation of an express easement. — Where plaintiffs' deed conveyed part of a larger tract of land subject to a "fifty foot wide road easement to and across the property as shown on" a recorded plat; the plat described the easement as "road & 50' wide easement follows approx. c/l of Monument Creek" and "easement extends to forest service road"; the plat showed that the easement originated at a forest service road on property on the east side of plaintiffs' property, traversed that property and then plaintiffs' property, and connected with property on the west side of plaintiffs' property; plaintiffs' property and the property on the east side of plaintiffs' property were held by a common grantor at the time the plat was surveyed; and the language of plaintiff's deed indicated that the grantor intended to reserve an easement "across" plaintiff's property and to grant easement access "to" plaintiff's property, there was sufficient evidence of the grantors' intent to create an express easement over the property on the east side of plaintiffs' property where the easement originated. Dethlefsen v. Weddle, 2012-NMCA-077, 284 P.3d 452.

Timber reservation. — Where a deed reserved all timber measuring 18 inches in circumference measured 18 inches above the ground, together with the rights of ingress and egress for the purpose of harvesting and removing the timber for the benefit of the original grantors and their heirs and assigns, the reservation was a limited estate that terminated after a reasonable time. Marrujo v. Sanderson, 2008-NMCA-112, 144 N.M. 730, 191 P.3d 588.

An estate in timber is presumed to be of limited duration, unless the parties provide a clear expression of intent to establish a perpetual fee simple interest. Marrujo v. Sanderson, 2008-NMCA-112, 144 N.M. 730, 191 P.3d 588.

Provisions provide greater formality and certainty in the transfer of realty. McBee v. O'Connell, 1911-NMSC-049, 16 N.M. 469, 120 P. 734.

Writing affecting realty must conform to statutory requirements. — The effect of the language of this section is such - so restrictive - that any writing affecting real estate, in law or equity, is of force, or valuable, so far only as it may be in accordance with the requirements of the statute. If such writing does not conform to the requirements of the statute, it has no force and is valueless. Edgar v. Baca, 1875-NMSC-001, 1 N.M. 613.

Section not applicable to wills. — This section has to do only with conveyances inter vivos, and has no application to wills. Plomteaux v. Solano, 1918-NMSC-104, 25 N.M. 24, 176 P. 77.

Land received under United States grant alienable. — There is nothing in the language of a patent to indicate any intention that there should be any restraint upon alienation, where lands were described in a grant from the United States to named grantees, being "inhabitants of the town of Cevoletta, their successors and assigns," which was evidenced by a patent with the recital: to have and to hold such lands unto said inhabitants, their successors and assigns forever with the stipulations aforesaid, and lands so granted can be divested by voluntary or involuntary means and are subject to prescription, for title to common and unallotted lands of a community grant can be acquired by adverse possession. L Bar Cattle Co. v. Board of Trustees, 1941-NMSC-057, 46 N.M. 26, 120 P.2d 432, appeal dismissed, 316 U.S. 645, 62 S. Ct. 1108, 86 L. Ed. 1729 (1942).

Conveyance of fee with life estate in grantor. — If a deed is otherwise properly executed and acknowledged, contains words of conveyance ordinarily found in deeds, and delivered to the grantee, the fact that the deed recites that it is to take effect only upon death of grantor, does not render the deed testamentary in character, but rather conveys a fee title postponing possession during the life of the grantor. Vigil v. Sandoval, 1987-NMCA-101, 106 N.M. 233, 741 P.2d 836.

Equitable title acquired held unaffected by subsequent congressional actions. — The Alien Act of Congress approved March 3, 1887, did not apply to executory contracts for the sale of land under which equitable titles had been acquired in good faith. Potter v. Rio Arriba Land & Cattle Co., 1888-NMSC-014, 4 N.M. (Gild.) 649, 17 P. 609.

Written instruments essential. — Under the civil law as it existed in New Mexico in 1868, written instruments were essential for the sale of land. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 14 S. Ct. 458, 38 L. Ed. 279 (1894).

Substantially performed and satisfactorily proved oral agreement specifically enforceable. — An oral agreement to devise property in consideration of personal services, which is substantially performed and is established by satisfactory proof, may be enforced in equity by specific performance, notwithstanding the statute of frauds. Estate of McGee, 1942-NMSC-024, 46 N.M. 256, 127 P.2d 239; Paulos v. Janetakos, 1937-NMSC-067, 41 N.M. 534, 72 P.2d 1.

Possession, improvement and full payment constitute substantial performance. — Oral contracts, partly performed, stand on a parity with contracts in writing insofar as enforcement is concerned, and in this instance, the court being satisfied that inequity would not result from its enforcement, possession of the premises pursuant to the oral agreement, followed by the making of improvements and full payment of the consideration, is enough to take the contract out of the statute of frauds. Shipp v. Thomas, 1954-NMSC-034, 58 N.M. 190, 269 P.2d 741.

Option may be terminated by failing to perform the terms of the option. Where the parties entered into a realtors form purchase agreement whereby plaintiffs agreed to sell a 25 acre tract to defendant for $750,000, with a down payment of $150,000 and a loan of $600,000; the word "Option" was hand written after the title of the form purchase agreement and under the heading "Cash or Financing Conditions and Obligations" the purchase agreement stated "Real Estate Option. For terms, see attached addendum"; the purchase agreement did not provide for a closing date; the parties subsequently entered into an option agreement, which provided that the consideration for the grant of the option was $750,000, with $150,000 down payment and annual payments of $100,000 plus interest and for a closing after defendant provided notice of intent to exercise the option; defendant failed to pay an annual payment; and plaintiffs sued defendant for breach of contract to recover the sales price on the grounds that plaintiffs had sold the property under an installment purchase agreement, because the original purchase agreement expressed the parties' intent to create an option and the option agreement clarified their intent, defendant had the unilateral option to either make annual payments and exercise the option or cease making payments and thereby not exercise the option, plaintiffs were not entitled to enforce the option agreement, and defendant had the right to not exercise the option by making a payment. Garcia v. Sonoma Ranch East II, L.L.C., 2013-NMCA-042, 298 P.3d 510.

Law reviews. — For article, "Toward Clarification of New Mexico's Real Property Statutes," see 1 Nat. Res. J. 163 (1961).

For note, "Vendor and Purchaser - Increased Risks of Forfeiture and Malpractice Resulting from the Use of Real Estate Contracts: Albuquerque National Bank v. Albuquerque Ranch Estates, Inc.," see 15 N.M.L. Rev. 99 (1985).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 23 Am. Jur. 2d Deeds § 1.

Effect of designating grantee in deed by firm name, 1 A.L.R. 564, 8 A.L.R. 493.

Equitable relief from deed on ground of intoxication, 6 A.L.R. 331.

Validity and effect of deed executed in blank as to name of grantee, 32 A.L.R. 737, 75 A.L.R. 1108, 175 A.L.R. 1294.

Remedy of mortgagee in mortgage of wife's property by husband in which wife does not join, when proceeds are used to discharge valid lien, 43 A.L.R. 1406, 151 A.L.R. 407.

Lien of vendee for amount paid on purchase-price where contract of married woman to convey is invalid, 45 A.L.R. 360, 33 A.L.R.2d 1384.

Validity and effect of alienation or encumbrance of homestead without joinder or consent of wife, 45 A.L.R. 395.

Delivery of deed to third person to be delivered to grantee after grantor's death, 52 A.L.R. 1222.

Manual delivery of deed to grantee as an effective legal delivery, 56 A.L.R. 746.

Duress of third person as affecting validity of deed, 62 A.L.R. 1479.

Delivery as essential to gift by deed, 63 A.L.R. 553, 48 A.L.R.2d 1405.

Bank president's or vice-president's authority to execute deed, 67 A.L.R. 979.

Declaratory judgment as to deed, 68 A.L.R. 125, 87 A.L.R. 1205, 142 A.L.R. 8

Deed of spouse of vendor as meeting vendor's obligation, 109 A.L.R. 190.

Relation back of title or interest embraced in escrow instrument upon final delivery or performance of condition as affected by intervening marriage of feme sole grantor, 117 A.L.R. 80.

Conveyance of minerals as including minerals recoverable only by open pit mining, 1 A.L.R.2d 787.

Oil or gas "royalty" within language of conveyance, 4 A.L.R.2d 492.

Effect of supplying description of property conveyed after manual delivery of deed, 11 A.L.R.2d 1372.

Nature of estate conveyed by deed for park or playground purposes, 15 A.L.R.2d 975.

Commencement of running of statute of limitations respecting action by owners of right of re-entry, or actions against third persons by reversioners, 19 A.L.R.2d 729.

Effect on validity and character of instrument in form of deed of provisions therein indicating an intention to postpone or limit the rights of grantee until after the death of grantor, 31 A.L.R.2d 532.

Oil and gas as "minerals" within deed, 37 A.L.R.2d 1440.

Quantum or character of estate or interest created by language providing premises as a home, or giving or granting same for such use, 45 A.L.R.2d 699.

Validity of provisions of deed prohibiting, penalizing, or requiring marriage to one of a particular religious faith, 50 A.L.R.2d 740.

Conflict between granting and habendum clauses as to estate conveyed, 58 A.L.R.2d 1374.

What constitutes acceptance of deed by grantor, 74 A.L.R.2d 992.

Validity, construction and effect of restrictive covenant requiring consent of third person to construction on lot, 40 A.L.R.3d 864.

Conveyance of "right of way," in connection with conveyance of another tract, as passing fee or easement, 89 A.L.R.3d 767.

Which of conflicting descriptions in deeds or mortgages of fractional quantity of interest intended to be conveyed prevails, 12 A.L.R.4th 795.

Specificity of description of premises as affecting enforceability of contract to convey real property - modern cases, 73 A.L.R.4th 135.

Vendor's obligation to disclose to purchaser of land presence of contamination from hazardous substances or wastes, 12 A.L.R.5th 630.

26 C.J.S. Deeds § 12.