No deed, mortgage or other instrument in writing not recorded in accordance with Section 14-9-1 NMSA 1978 shall affect the title or rights to, in any real estate, of any purchaser, mortgagee in good faith or judgment lien creditor, without knowledge of the existence of such unrecorded instruments. Possession alone based on an unrecorded executory real estate contract shall not be construed against any subsequent purchaser, mortgagee in good faith or judgment lien creditor either to impute knowledge of or to impose the duty to inquire about the possession or the provisions of the instruments.

History: Laws 1886-1887, ch. 10, § 3; C.L. 1897, § 3955; Code 1915, § 4788; Laws 1923, ch. 11, § 1; C.S. 1929, § 118-110; 1941 Comp., § 13-203; 1953 Comp., § 71-2-3; Laws 1990, ch. 72, § 1.

The 1990 amendment, effective May 16, 1990, substituted "Section 14-9-1 NMSA 1978" for "Section 4786" in the first sentence and added the second sentence.

I. GENERAL CONSIDERATION.

Applicability. — This section is applicable only in situations where two deeds purport to convey the same property. Grammer v. New Mexico Credit Corp., 1957-NMSC-018, 62 N.M. 243, 308 P.2d 573.

This section applies to tax deeds. Cano v. Lovato, 1986-NMCA-043, 105 N.M. 522, 734 P.2d 762.

Inapplicability to tax liens. — A tax lien is not within the class of written instruments governed by this section. Cano v. Lovato, 1986-NMCA-043, 105 N.M. 522, 734 P.2d 762.

Construed in pari materia. — Section 14-9-2 NMSA 1978 must be considered with this section with which it is in pari materia. Romero v. Sanchez, 1971-NMSC-129, 83 N.M. 358, 492 P.2d 140.

Applicability to revocable trusts. — The protection afforded by the New Mexico recording acts is inapplicable to a revocable trust that does not affect the title to the original property. Withers v. Board of Cnty. Comm'rs, 1981-NMCA-032, 96 N.M. 71, 628 P.2d 316.

Word "purchaser" has two well defined meanings, the common and popular meaning being that he is one who obtains title to real estate in consideration of the payment of money or its equivalent, and the other being technical and including all persons who acquire real estate otherwise than by descent, which includes acquisition by devise, and the word is used in the recording statute in its popular sense. Arias v. Springer, 1938-NMSC-025, 42 N.M. 350, 78 P.2d 153; Withers v. Board of Cnty. Comm'rs, 96 N.M. 71, 628 P.2d 316.

Intermittent or occasional use of land is insufficient to operate as notice to a purchaser. Ortiz v. Jacquez, 1966-NMSC-243, 77 N.M. 155, 420 P.2d 305.

Any conflict between 40-3-13 NMSA 1978, requiring joinder of spouses, and this section should be resolved in favor of this section which protects the rights of innocent purchasers for value without notice of unrecorded instruments. Jeffers v. Martinez, 1979-NMSC-083, 93 N.M. 508, 601 P.2d 1204, appeal after remand, 1982-NMSC-116, 99 N.M. 351, 658 P.2d 426.

Section does not require deeds to be acknowledged. Garcia v. Leal, 1924-NMSC-078, 30 N.M. 249, 231 P. 631.

Acknowledgment is not essential to validity of deed of conveyance as between its parties. Kitchen v. Canavan, 1932-NMSC-037, 36 N.M. 273, 13 P.2d 877.

Verbal consent to assignment. — A party's verbal consent to an assignment of an interest in a real estate contract is not a substitute for perfection of that interest by recording. Mazer v. Jones, 184 B.R. 377 (Bankr. D.N.M. 1995).

Priority of recorded judgment lien. — Although it has been held that the 1923 amendment of this section did not affect the priority of an unrecorded mortgage over a recorded judgment lien, yet as between them taking effect simultaneously, since the law of 1923 took effect, the recorded judgment lien has priority. Fulghum v. Madrid, 1927-NMSC-064, 33 N.M. 303, 265 P. 454.

Effect of failure to record. — A deed of land, though not recorded, is good between grantor and grantee, and divests the title of the former, so that it does not pass to a subsequent grantee, or mortgagee, who takes only the estate which belongs to the grantor at the time. Ames v. Robert, 1913-NMSC-021, 17 N.M. 609, 131 P. 994.

Requirement tax deeds to be recorded not applicable. — Where a deed issued by state tax commission to an individual conveyed land which had previously been conveyed by the county treasurer to the state in pursuance of a tax sale to the state, the deed from the tax commission is not a tax deed and the requirement that tax deeds must be recorded within a year after their issuance is not applicable thereto. Hargrove v. Lucas, 1952-NMSC-043, 56 N.M. 323, 243 P.2d 623.

II. PERSONS PROTECTED.

Effect of correction deeds referencing easement extinguishment agreement. — Where a five-acre tract was burdened by an access easement that benefitted an adjoining twenty-two acre tract; the original owner of both tracts sold the five-acre tract to defendants and on March 5, 2001, the original owner executed an extinguishment agreement terminating the easement across the five-acre tract; the extinguishment agreement provided that it would be effective upon recordation in the county records; two days later, on March 7, defendants recorded the deed to the five-acre tract which described the land as burdened by the easement; the original owner sold the twenty-two acre tract to a third party; on April 25, the third party recorded its deed; on April 30, defendants recorded the extinguishment agreement; the third party was a bona fide purchaser without notice of the extinguishment agreement; two years later, the third party sold the twenty-two acre tract to plaintiff; and at plaintiff's insistence, corrected deeds between the original owner and the third party, and the third party and plaintiff incorporated by reference the extinguishment agreement, the extinguishment agreement was valid when recorded and by correcting its deeds to incorporate the extinguishment agreement, plaintiff forfeited its protection under the recording statutes and its right to the easement across the five-acre tract. Amethyst Land Co., Inc. v. Terhune, 2014-NMSC-015, rev'g 2013-NMCA-059, 304 P.3d 434.

Failure to promptly record extinguishment of easement. — Where access to plaintiff's 22 acre tract was provided by a forty foot roadway easement on an adjoining five acre tract that was owned by defendants; on February 16, 2001, the common owner of both tracts signed a warranty deed conveying the five acre tract to defendants, expressly subject to the forty foot easement, on March 5, 2001, the common owner signed an extinguishment agreement to terminate the forty foot easement; on March 7, 2001, defendants' warranty deed was recorded; on March 20, 2011, the common owner gave a special warranty deed to the 22 acre tract to plaintiff's predecessor in title which did not mention the forty foot easement or the extinguishment agreement; on April 12, 2001, defendants signed the extinguishment agreement; on April 25, 2001, plaintiff's predecessor recorded the special warranty deed to the 22 acre tract; on April 30, 2001, defendants recorded the extinguishment agreement; two years later, plaintiff acquired the 22 acre tract by quitclaim deed which plaintiff recorded on April 30, 2003; and plaintiff's predecessor did not have actual or inquiry notice of the extinguishment agreement when the predecessor acquired the 22 acre tract, plaintiff's predecessor was a bona fide purchaser without notice of the extinguishment agreement and acquired title to the 22 acre tract free of the extinguishment agreement, the 22 acre tract continued to be benefitted by the forty foot easement, plaintiff acquired the property interests and rights of its predecessor, including the forty foot easement, and the extinguishment agreement was ineffective against plaintiff. Amethyst Land Co., Inc. v. Terhune, 2013-NMCA-059, 304 P.3d 434, rev'd, 2014-NMSC-015.

Correction deeds referencing an ineffective easement extinguishment agreement did not revive the easement. — Where access to plaintiff's 22 acre tract was provided by a forty foot roadway easement on an adjoining five acre tract that was owned by defendants; when defendants acquired the five acre tract, the common owner of both tracts signed an extinguishment agreement to terminate the forty foot easement; before the extinguishment agreement was recorded, the common owner sold the 22 acre tract to plaintiff's predecessor in title who was unaware of the extinguishment agreement and who later sold the 22 acre tract to plaintiff; plaintiff's predecessor and plaintiff acquired title to the 22 acre tract free of the extinguishment agreement; and after plaintiff acquired the 22 acre tract, plaintiff's attorney searched the record and prepared correction deeds from the common owner to plaintiff's predecessor and from plaintiff's predecessor to plaintiff which expressly included the forty foot easement and stated that the easement was partially vacated by the extinguishment agreement, the correction deeds did not revive the extinguishment agreement or otherwise terminate the forty foot easement. Amethyst Land Co., Inc. v. Terhune, 2013-NMCA-059, 304 P.3d 434, rev'd, 2014-NMSC-015.

Purchases and mortgages. — Prior to the amendment of 1923, the recording laws were for the protection of purchasers and mortgagees only. Wells v. Dice, 1929-NMSC-008, 33 N.M. 647, 275 P. 90.

Attachment creditors. — An unrecorded conveyance protected only subsequent purchasers and mortgagees in good faith and without notice, but did not protect attachment creditors. Chetham-Strode v. Blake, 1914-NMSC-067, 19 N.M. 335, 142 P. 1130.

Investors and judgment creditors. — The object of the recording statute is to prevent injustice by protecting those who, without knowledge of infirmities in the title, invest money in property or mortgage loans and those who have acquired judgment liens without such knowledge. Arias v. Springer, 1938-NMSC-025, 42 N.M. 350, 78 P.2d 153.

Purchaser, mortgagee, or judgment creditor. — In order to avail himself of the protection of this section, a party must be a purchaser, mortgagee in good faith, or a judgment lien creditor of the land in question. Withers v. Board of Cnty. Comm'rs, 1981-NMCA-032, 96 N.M. 71, 628 P.2d 316.

Gift recipients. — Because persons who have not given consideration in exchange for the title to property cannot invoke the recording statute, summary judgment in an action involving defendant's claim of title to property pursuant to the recording statute was in error where plaintiff raised the factual issue of whether the defendant acquired the property by gift. Valencia v. Lundgren, 2000-NMCA-045, 129 N.M. 57, 1 P.3d 975.

Test whether one had implied knowledge is whether he exercised the ordinary care of a purchaser of a federal oil and gas lease. O'Kane v. Walker, 561 F.2d 207 (10th Cir. 1977).

Oil and gas lease. — Purchaser exercised the ordinary care expected of a purchaser of a federal oil and gas lease where careful investigation of the records showed record title in the offeror, the price was low, but not unreasonably so in view of the short remaining lease term and the highly speculative nature of the investment, and purchaser was a bona fide purchaser, without actual or implied knowledge of any facts which would have put him on notice of an unrecorded conveyance. O'Kane v. Walker, 561 F.2d 207 (10th Cir. 1977).

Equitable principles require that innocent purchaser should prevail over one who negligently fails to record a deed upon which he seeks to rely. Jeffers v. Martinez, 1979-NMSC-083, 93 N.M. 508, 601 P.2d 1204, appeal after remand, 1982-NMSC-116, 99 N.M. 351, 658 P.2d 426.

Equitable principles require that innocent purchaser should prevail over one who negligently fails to record a deed upon which he seeks to rely. Jeffers v. Martinez, 1979-NMSC-083, 93 N.M. 508, 601 P.2d 1204, appeal after remand, 1982-NMSC-116, 99 N.M. 351, 658 P.2d 426.

Unrecorded chattel mortgage. — A chattel mortgage is good between the parties and against purchasers with notice although unrecorded. Kitchen v. Schuster, 1907-NMSC-021, 14 N.M. 164, 89 P. 261.

Unrecorded plat. — Where the developer submitted a preliminary plat that described a ten-acre parcel as open space; the municipality instructed the developer to designate the parcel as a "drainage easement" as a surrogate term for "open space" and the municipality relied on the developer's representation that the parcel would be set aside as open space in perpetuity; the preliminary plat was not recorded; the final recorded plat designated the parcel as a drainage easement; and the developer sold the parcel to a buyer who had no knowledge of the unrecorded interest of the municipality, the recorded plat unambiguously granted the municipality an easement for the specific purpose of drainage thereby extinguishing any unrecorded interests and relieving the subsequent buyer, who was a good faith purchaser for value, from the duty to diligently investigate whether the municipality had other adverse claims to the property title. City of Rio Rancho v. Amrep Sw., Inc., 2011-NMSC-037, 260 P.3d 414, aff'g in part, rev'g in part 2010-NMCA-075, 148 N.M. 542, 238 P.3d 911.

Quiet title suit. — In suit to quiet title, where plaintiff and defendant both derive their titles from the same grantor, and defendant purchased in good faith, for value and had no knowledge of the outstanding unrecorded deed of his grantor to plaintiff's grantor, defendant had the better title, notwithstanding the fact that he took a quitclaim deed. Mabie-Lowrey Hdwe. Co. v. Ross, 1920-NMSC-026, 26 N.M. 51, 189 P. 42.

Oral agreement. — If one is a bona fide purchaser for value without notice of another's claimed interest, then the oral agreement would be of no effect as to him even if it be treated as an enforceable agreement as between the other person and the vendor. Ortiz v. Jacquez, 1966-NMSC-243, 77 N.M. 155, 420 P.2d 305.

III. PARTICULAR CASES.

Deeds. — Where land conveyed by unrecorded deed was within larger tract subsequently conveyed by grantor to another and was not specifically excepted from operation of later deed, both deeds purported to convey same land and this section was applicable, and later grantee did not have constructive notice of unrecorded deed. Grammer v. New Mexico Credit Corp., 1957-NMSC-018, 62 N.M. 243, 308 P.2d 573.

Residuary legatee. — Where grantor delivered deed to third party with instructions to retain the same in her possession until grantor died, and then to deliver it to grantee, and imposed no conditions, retained no right to recall the deed and exercised no control over it thereafter, grantor's residuary legatee and devisee was not a purchaser within meaning of recording statute, and could not claim title as against the deed, though unrecorded. Arias v. Springer, 1938-NMSC-025, 42 N.M. 350, 78 P.2d 153.

Constructive notice. — A lien on real estate resulting from a recorded transcript of judgment does not have priority over the interest of purchasers under an earlier executed but unrecorded contract, where the lienholder has constructive notice of the purchasers' interest through the purchasers' actual possession of the property. Citizens Bank v. Hodges, 1988-NMCA-001, 107 N.M. 329, 757 P.2d 799, cert. denied, 107 N.M. 74, 752 P.2d 789.

Partnership certificate as constructive notice. — In the absence of a recorded deed at the time plaintiff's judgment lien attached, defendant's partnership's certificate could not function as constructive notice to plaintiff of plaintiff's conveyance of the realty at issue to a partnership he formed with another party, since the partnership certificate at issue was filed with records other than those relating to property transfers, and defendant's name was not associated with the partnership in the index to those records. F & S Co. v. Gentry, 1985-NMSC-065, 103 N.M. 54, 702 P.2d 999.

Reversionary interest. — Where a mortgagor entered into an executory contract to sell his land nearly six years prior to his execution of the mortgage, so that the only interest he still owned in such real estate involved a possibility of a reverter to him in the event of a default in payment of the real estate contract, the mortgagee's bank had actual notice of the facts and did not assign to the bank any interest in the unpaid balance of the real estate contract, the trial court properly concluded, as a matter of law, that the only lien the bank acquired was on the possible reversionary interest, and accordingly, since the mortgage did not "attach to" the real property, the trial court correctly concluded that the bank was not entitled to foreclose the mortgage. First Nat'l Bank v. Luce, 1974-NMSC-098, 87 N.M. 94, 529 P.2d 760.

Reformation of deed not to affect rights of innocent purchaser. — Because there was no evidence that a judgment lienholder had any notice of a claimed mistake in a deed until she attempted to execute her judgment, the court was correct in ruling that any reformation of the deed was not effective against her rights. Ruybalid v. Segura, 1988-NMCA-084, 107 N.M. 660, 763 P.2d 369.

Acknowledgment of assignment on back of executory contract for sale of real estate, to which the assignment refers for particular description, is not an acknowledgment of the contract, and although the contract was copied into the record, that did not make it of record, nor constructive notice to a subsequent purchaser having no actual knowledge of it. McBee v. O'Connell, 1911-NMSC-049, 16 N.M. 469, 120 P. 734, appeal after remand, 1914-NMSC-088, 19 N.M. 565, 145 P. 123.

Innocent purchaser for value. — Plaintiff was an innocent purchaser for value, under 14-9-1 to 14-9-3 NMSA 1978, of oil and gas lease interests since the records at the federal land office did not constitute constructive notice or prior assignment which plaintiff had no knowledge of, and the assignment was not recorded in the appropriate county clerk's office, as required by 70-1-1 and 70-1-2 NMSA 1978. Bolack v. Underwood, 340 F.2d 816 (10th Cir. 1965).

Rights of a judgment lien creditor were held fixed by condition of affairs as they existed at time of inception of his lien. They were not affected by a subsequent conveyance which debtor could not have been coerced by courts to make. Sylvanus v. Pruett, 1932-NMSC-002, 36 N.M. 112, 9 P.2d 142.

Judgment lien was held superior to alleged mortgage lien claimed under altered warranty deed by party whose name had been inserted as grantee therein. Scheer v. Stolz, 1937-NMSC-070, 41 N.M. 585, 72 P.2d 606.

Prescriptive title cannot be obtained by adverse user based on a written, but unrecorded, grant. Southern Union Gas Co. v. Cantrell, 1952-NMSC-024, 56 N.M. 184, 241 P.2d 1209.

Gas easement. — Where gas company acquired easement for right-of-way by written instrument which was not recorded and the easement was not visible or open, a third-party purchaser, without knowledge of the easement, was not bound thereby, since gas company did not have prescriptive easement in the land. Southern Union Gas Co. v. Cantrell, 1952-NMSC-024, 56 N.M. 184, 241 P.2d 1209.

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

For 1986-88 survey of New Mexico law of real property, 19 N.M.L. Rev. 751 (1990).

For article, "Legislature Tampers With Recording Act," see 20 N.M.L. Rev. 235 (1990).

For annual survey of New Mexico Law of Property, see 20 N.M.L. Rev. 373 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 66 Am. Jur. 2d Records and Recording Laws §§ 156 to 193.

Rights as between purchaser of timber and subsequent vendee of land, 18 A.L.R.2d 1150.

Relative rights to real property as between purchasers from or through decedent's heirs and devisees under will subsequently sought to be established, 22 A.L.R.2d 1107.

Relative rights in real property as between purchasers from or through decedent's heirs or devisees and unknown surviving spouse, 39 A.L.R.2d 1082.