Any land embraced in any townsite which has been entered as provided by the laws of the United States and the title of which is vested in the probate judge, in trust for the use and benefit of the several occupants of the land embraced within the said townsite, which has not been conveyed to the occupants, their heirs, executors, successors or assigns, who were entitled to the same at the time the entry of such land was made, or at the time patent was received from the United States, by reason of the failure of said probate judge to give notice of such entry, or the receiving of said patent, or by reason of such occupants, their heirs, executors, successors and assigns failing to make the statement and filing the same as required by law, then in such case any such occupant, or the heirs, executors, successors or assigns of any such occupant, may file a suit in the district court in the county wherein such land is situated, to have his or its interest in the said land, at the time of such entry, or the receiving of such patent, or the successor in title to the right of such occupant, declared and ascertained. The probate judge shall be made a party defendant and the said district court, upon a hearing, shall adjudicate and determine the interest of such occupant at the time of such entry, or the receiving of such patent, or the interest of the heirs, executors, successors and assigns of such occupant, and entering a decree declaring the interest of such occupant. Upon the entering by the said district court of the decree declaring the interest of such occupant, or his or its successors in title, the probate judge of the county shall immediately thereafter make, execute and deliver to the parties so declared to be entitled to any part of the land embraced within the said townsite, a deed for his or its respective interest.
History: Laws 1912, ch. 12, § 1; Code 1915, § 5516; C.S. 1929, § 144-104; 1941 Comp., § 8-504; 1953 Comp., § 7-5-4.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Entry pursuant to law essential. — Probate judge takes no title to townsite land until entry is made pursuant to law. Dugan v. Montoya, 1918-NMSC-035, 24 N.M. 102, 173 P. 118.
Requisites of complaint. — In action under this section and Section 19-4-10 NMSA 1978, the complaint must show that plaintiff complied with the law as to filing and notice; and when the complaint shows legal title in one of the defendants, the plaintiff is barred from maintaining the suit. Kemp Lumber Co. v. Whitlatch, 1915-NMSC-075, 21 N.M. 88, 153 P. 1050, criticized in Alvarez v. Board of Trustees, 1957-NMSC-022, 62 N.M. 319, 309 P.2d 989.
Section cannot be circumvented by improper conveyances by probate judge. Alvarez v. Board of Trustees, 1957-NMSC-022, 62 N.M. 319, 309 P.2d 989.
Remedy not foreclosed. — Action of Catholic bishop on behalf of church, occupant of land granted to probate judge in 1925 to be held in trust for the occupant, in seeking to have the land conveyed to him by townsite's board of trustees, operated neither as an election of remedies nor an estoppel in pais, nor did his act in defending the action brought to have the deed set aside have such an effect; the only remedy available to him was that provided in this section, which he pursued in his first affirmative judicial act of seeking a conveyance from the probate judge. Alvarez v. Board of Trustees, 1957-NMSC-022, 62 N.M. 319, 309 P.2d 989.
Repeal of conflicting provisions. — Two provisions of Section 19-4-10 NMSA 1978 are repugnant to and irreconcilable with this section and were therefore repealed thereby, namely, the absolute bar in Section 19-4-10 NMSA 1978 to an occupant who failed to file a claim within the specified time limit and the provision of Section 19-4-10 NMSA 1978 that upon failure to file a claim the property reverted to the town, since if failure to file resulted in property reverting to the town, title would no longer be in the probate judge and this section could never be utilized. Alvarez v. Board of Trustees, 1957-NMSC-022, 62 N.M. 319, 309 P.2d 989.