February 27, 2016

This article was initially published by the Rocky Mountain Mineral Law Foundation in the February 2017 Mineral Law Newsletter. 

CERTAINTY IN QUIET TITLE JUDGMENTS UPHELD BY NEW MEXICO SUPREME COURT

By Elizabeth A. Ryan and Christopher A. Lauderman [1]

On October 20, 2016, the New Mexico Supreme Court in T.H. McElvain Oil & Gas L.P. v. Benson-Montin-Greer Drilling Corp. Inc., No. S-1-SC-34993, clarified that constructive service of process by publication satisfies due process if and only if the names and addresses of the defendants to be served are not “reasonably ascertainable.”  Id. at ¶ 31.  In this case, the Plaintiffs sought to declare a 1948 quiet title judgment void for failure to properly serve their predecessor-in-interest.  Id. at ¶ 1.

This saga began in 1927 when a landowner conveyed 160 acres of land in San Juan County, New Mexico to Mabel Wilson and her parents, as joint tenants with the right of survivorship.  Id. at ¶ 3.  The following year, the Wilsons deeded the property to David Miller, reserving the oil, gas and mineral interests.  Id.  In 1931, David Miller subsequently conveyed by quitclaim deed his mineral interests in the 160 acres to his brother, Thomas Miller.  Id. at ¶ 4.  In 1948, Thomas Miller filed a quiet title action in San Juan County, alleging that he was the fee simple owner of 931 acres, which encompassed the 160-acre mineral tract at issue.  Id. at ¶ 7.  Miller alleged in his Complaint that after diligent search and inquiry, he was unable to learn or determine the names, places of residence, Post Office addresses, and whereabouts of the unknown heirs of any deceased defendants.  Id.  Moreover, he alleged if any defendants were still living and resided in New Mexico, the defendants had “secreted” themselves so that service of process could not be had except by publication.  Id.  Miller then served by publication in a weekly newspaper published in San Juan County.  Id.  The Sheriff of San Juan County also attempted to serve notice on all parties, but was unable to locate any defendants.  Id. at ¶ 8.  The Court entered its judgment on December 20, 1948, quieting title in favor of Thomas Miller.  Id.

Mabel Wilson, the last surviving joint tenant, died in 1970.  Id. at ¶ 6.  At all times, Wilson resided in San Diego, California.  Id.  Prior to 1948, Wilson married and changed her name to Mabel W. Weeber.  Id.  Her estate made no claim to real property in New Mexico.  Id.  The 1948 San Diego City Directory contains a listing for “Weeber Chas E (Mabel W).”  Id. at ¶ 11.  This was the same address as Mabel Wilson’s parents.  Id.

In 2002, a landman informed Mabel Wilson’s successors-in-interest that they were the current owners of the mineral interests appurtenant to the property.  Id.  Wilson’s successors filed a civil action, challenging the constitutional effectiveness of the service of process made by publication on their predecessors-in-interest.  Id. at ¶ 14.  The New Mexico Rules of Civil Procedure, “both as they exist today and as they existed in 1948, effectuate the requirements of due process.”  Id. at ¶ 32; see, e.g., Rule 1-004(E) NMRA, comm. cmt. (“Rule 1-004(E)(1) makes explicit in the rule the general test for constitutionally-adequate service of process . . . .”)  In 1948, Rule 4(g) required a party seeking to serve notice by publication to “‘file a sworn pleading or affidavit, stating that any defendant’ had either gone out of state, concealed himself or herself within the state, otherwise avoided service, or that his or her name or place of residence are unknown.”  Id. (quoting NMSA 1941, § 19-101(4)(g) (Vol. 2)).  “Such a showing required the clerk of the court to issue notice of the action in a publication in the county in which the action was pending.”  Id.  The special master concluded that any investigation by Thomas Miller in 1948 would not have been likely to locate Mabel Wilson because her parents had died and she did not appear by that name in the telephone directory.  Id. at ¶ 16.  The special master also determined that the plaintiffs’ claim to title was barred by laches, waiver, and estoppel for failure to claim ownership from 1928 until 2002.  Id. at ¶ 17.  The New Mexico Court of Appeals reversed, concluding that Miller did not exercise diligence and good faith in notifying the Wilsons of the quiet title action.  Id. at ¶ 18. 

The New Mexico Supreme Court reversed the Court of Appeals, holding that notice by publication is proper in circumstances, such as the one here, as a last resort if and only if the names and addresses of the defendants are not reasonably ascertainable.    Id. at ¶ 31.  The Court reiterated that the exercise of diligence and good faith to locate a defendant are implicit prerequisites to effect service of process by publication.  Id. at ¶ 32.

In this case, the Supreme Court agreed with the district court that nothing indicated that Thomas Miller had information regarding Mabel Wilson’s whereabouts or that her whereabouts could be identified through reasonable diligence.  Id. at ¶ 37.  The Court noted that the world was a different place in 1948 and that Miller would have to have (1) assumed Mabel still lived in San Diego based on a twenty-year-old sale; (2) acquired and searched the San Diego City Directory from 1926 or 1930 to find the Wilson’s San Diego address; (3) searched San Diego’s public records for Eva Wilson’s death certificate which named her daughter Mabel Weeber as her informant or sift through twenty years of obituaries; and (4) inferred an exact familial relationship between Mabel and her parents.  Id. at ¶¶ 36–37.  The Court said Miller was not required to comb San Diego records to identify individuals who might appear to have an interest in the Property and who were not reasonably ascertainable.  Id. at ¶ 42.  Mabel Wilson’s address was not in any of the original deeds, she changed her name by the 1948 action, and she did not exercise ownership in the Property between 1928 and 1948.  Id. at ¶ 43.

Finally, the Court stressed the importance it must accord to finality in the context of court judgments.  Id. at ¶ 44.  Quiet title judgments provide the certainty needed to ensure that one is the record owner of property in New Mexico to the exclusion of others.  Id.  

1] The author thanks Christopher A. Lauderman, associate attorney with Carson Ryan LLC, Roswell, New Mexico, for his assistance in writing this quarter’s report for New Mexico.