2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 6 - Quieting Title › Section 42-6-2 - Complaint; parties; unknown claimants.

The plaintiff must file his complaint in the district court, setting forth the nature and extent of his estate and describing the premises as accurately as may be, and averring that he is credibly informed and believes that the defendant makes some claim adverse to the estate of the plaintiff, and praying for the establishment of the plaintiff's estate against such adverse claims, and that the defendant be barred and forever estopped from having or claiming any lien upon or any right or title to the premises, adverse to the plaintiff, and that plaintiff's title thereto be forever quieted and set at rest. Any or all persons whom the plaintiff alleges in his complaint he is informed and believes make claim adverse to the estate of the plaintiff, the unknown heirs of any deceased person whom plaintiff alleges in his complaint in his lifetime made claim adverse to the estate of the plaintiff, and all unknown persons claiming any lien, interest or title adverse to plaintiff, may be made parties defendant to said complaint by their names, as near as the same can be ascertained, such unknown heirs by the style of unknown heirs of such deceased person, and said unknown persons who may claim any lien, interest or title adverse to the plaintiff, by the name and style of unknown claimants of interest in the premises adverse to the plaintiff. When the plaintiff shall allege generally in his complaint that he has made due search and inquiry to ascertain whether any person whom he desires to name as party defendant in said cause is living or dead and is unable to ascertain with certainty whether such person is living or dead, such person and his unknown heirs may be made parties defendant to said complaint under the name and style of "(name of the party), if living, if deceased, the unknown heirs of (name of the party), deceased." Service of process and notice of said suit against all of such defendants shall be made as in other cases in conformity with the provisions of law and rules of court relating to the service of process.
History:
Trial Court Rule 105-2002; 1941 Comp., § 25-1302; 1953 Comp., § 22-14-2; Laws 1973, ch. 199, § 1; 1977, ch. 150, § 1.
ANNOTATIONS
Compiler's notes.
— Trial Court Rule 105-2002 as amended supersedes Comp. Stat. 1929, § 105-2002 (C.L. 1897, § 2685(274), as added by Laws 1907, ch. 107, § 1(274); Code 1915, § 4388; Laws 1925, ch. 21, § 2, p. 32), as amended by Laws 1937, ch. 132, § 1, p. 387, and is identical therewith. The 1925 amendment of the statute added the provisions concerning liens. The 1937 amendment to the statute added the third sentence and changed the fourth sentence which previously provided that service should be made under the Code of Civil Procedure. In 1973 the legislature enacted Trial Court Rule 105-2002 as Section 22-14-2 NMSA 1953.
Cross references.
— For real property descriptions in pleading,
see
47-1-46 NMSA 1978.
For service of process,
see
Rule 1-004 NMRA.
The 1977 amendment,
effective April 1, 1977, deleted former Subsection B, relating to joinder of and service on spouses of defendants, and deleted the designation of the remainder of this section as Subsection A.
Complaint must recite facts sufficient to state cause of action.
— A complaint which states that "the plaintiff by virtue of diverse deeds of conveyance, etc., from the grant of the Colony of Refugio and of long and continuous adverse possession under color of title, etc., are the owners in fee simple of the property described" is insufficient. It fails to state facts sufficient to constitute a cause of action.
Oliver v. Enriquez
, 1912-NMSC-022, 17 N.M. 206, 124 P. 798.
Use of statutory language in complaint, proper.
— A complaint to quiet title to real estate in the language of the statute is sufficient.
Lamport v. Tidwell
, 1937-NMSC-093, 42 N.M. 12, 74 P.2d 69;
Knabel v. Escudero
, 1927-NMSC-032, 32 N.M. 311, 255 P. 633.
Facts as to derivation of title not required.
— Laws 1907, ch. 107, § 1 (274) Comp. Stat. 1929, § 105-2002, did not require a party to set forth any facts, as to the derivation of his title, but simply required a statement of the ultimate fact as to his ownership, and the interest he claimed.
Oliver v. Enriquez
, 1912-NMSC-022, 17 N.M. 206, 124 P. 798.
Complaint against assignee of tax sale certificate sufficient for quiet title.
— Complaint against assignee of tax sale certificate seeking cancelation of the certificate was sufficient as complaint to quiet title.
Lamport v. Tidwell
, 1937-NMSC-093, 42 N.M. 12, 74 P.2d 69.
Effect of omission of adverse possession claim is complaint.
— Where complaint to quiet title was in the form prescribed by this section, without making mention of the fact plaintiff claimed title by adverse possession under the quitclaim deed the trial court did not err in permitting proof of adverse possession under such complaint.
Lummus v. Brackin
, 1955-NMSC-023, 59 N.M. 216, 281 P.2d 928.
Unnecessary to repeat "unknown heirs of" before each individual name.
— It is sufficient to use the following form to designate unknown heirs: "Unknown heirs of the following named deceased persons" followed by the names of any and all deceased persons whose unknown heirs are desired to be served and it is unnecessary to repeat the words "unknown heirs of" before each individual name.
Thomas v. Meyers
, 1948-NMSC-025, 52 N.M. 164, 193 P.2d 624.
Proving estoppel.
— Facts which establish estoppel in pais must ordinarily be pleaded, but this need not be done in suit to quiet title where the plaintiff does not set forth nor plead his precise claim of title, in which case estoppel may be proved under the general issue.
Hoskins v. Talley
, 1923-NMSC-085, 29 N.M. 173, 220 P. 1007.
Neither judgment creditor, nor his assignee, can answer or counterclaim
in a suit to quiet title.
Security Inv. & Dev. Co. v. Capital City Bank
, 1917-NMSC-018, 22 N.M. 469, 164 P. 829.
Improper name of party renders action defective.
— Action to quiet title to land within boundaries of land grant to town of Las Vegas, brought under Comp. Laws 1897, §§ 4010, 4011, was defective where town of Las Vegas was not made a party by its proper name.
Priest v. Trustees of Town of Las Vegas
, 232 U.S. 604, 34 S. Ct. 443, 58 L. Ed. 751 (1914).
Effect of civil rule on joinder.
— Joinder of a person in possession or of one whose interest may be ascertained by ordinary diligence and inquiry so as to make possible a joinder by name, cannot be accomplished by joinder under the designation of "unknown claimant," in view of Rule 1-004 K(4) NMRA.
Murray Hotel Co. v. Golding
, 1950-NMSC-014, 54 N.M. 149, 216 P.2d 364.
Provisions for service of process strictly construed.
— Provisions for the service of process upon unknown claimants by publication in actions to quiet title will be strictly construed.
Priest v. Board of Trustees
, 1911-NMSC-072, 16 N.M. 692, 120 P. 894,
aff'd
, 232 U.S. 604, 34 S. Ct. 443, 58 L. Ed. 751 (1914).
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.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quieting Title §§ 69 to 78, 82 to 85, 96.
74 C.J.S. Quieting Title §§ 50, 52 to 66, 70, 104, 114.