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Romero v. Garcia – 546 P.2d 66 (N.M. 1976)

Case Name: Romero v. Garcia
Plaintiff/Appellee: Ida Romero
Defendant/Appellant: Mr. and Mrs. Antonio Garcia (former father/mother-in-law of Romero)
Citation: 546 P.2d 66 (N.M. 1976)

Issue: Whether the plaintiff could claim the land under adverse possession when the deed failed to describe a specific piece of property.

Key Facts:
1947 – Plaintiff purchased the 13 acres in dispute from defendant father but defendant mother failed to join in the conveyance. (The 13 acres were part of the 165 acres that defendant father had purchased in 1923).
A home was built on the land and the deed was recorded in 1950. The plaintiff and deceased husband lived in the home until 1962, when he died, and the plaintiff moved out to Colorado and remarried.

The defendants argued that:
The void deed was inadequate for color of title. This is erroneous because a deed is sufficient for color of even though it is void because it lacks the signature of a community member.

The deed’s description was inadequate for adverse possession because it failed to describe a specific piece of property. A deed is not void for want of proper description if, with the deed and with extrinsic evidence on the ground, a surveyor can ascertain the boundaries. An indefinite and uncertain description may be clarified by subsequent acts of the parties

Procedural History: The court found for the plaintiff.

Holding: The subsequent acts of the parties in erecting a house and pointing to the land were sufficient to ascertain the boundaries.

Judgment: Affirmed.

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Deed Recording Acts

Before recording acts were instituted, the common law rule for recording deeds was “first in time, first in right.” This means that if a subsequent purchaser did not have notice of a prior conveyance and records his interest, he will prevail over any prior unrecorded interest.

However, most states have recording acts which create rules for situations such as these. It is important to recognize that recording acts do not require that a deed be recorded for a conveyance to be legally valid. The deed is valid against the grantor upon delivery with or without recording.

There are three type recording acts:

  1. Race statutes – The person who records first prevails
  2. Notice statutes – A subsequent purchaser prevails over an earlier purchaser only if the subsequent purchaser did not have notice of the earlier conveyance. Further, the notice statute protects any purchaser without notice against unrecorded interests even if the purchaser does not record first.
  3. Race-Notice statutes – A subsequent purchaser prevails over prior unrecorded interests only if she:
  • Had no notice of the prior conveyance at the time she acquired her interest and
  • Records before the prior instrument is recorded

Race-notice is the majority rule which is in effect in 25 states and the District of Columbia.