Jenkins v. Huntsinger

MABRY, Justice. There is involved in this appeal the title to an undivided one half interest in a section of grazing land in Lincoln County. While there are a number of errors assigned by appellant, the principal contention revolves about the question of the effect of a deed given by a married man to community property in which the wife did not join, and involves an interpretation of Chap. 84, Laws of 1915, Sec. 68-403, Comp.St.1929. One George Roberts, a married man, attempted to sell and convey to one J. R. Jenkins, appellant, by warranty deed, the land in question for a consideration of $900, one half in cash, the balance secured by a mortgage on the land; thereafter and a short time after his wife had been granted a de? cree of divorce from him, the said Roberts' demanded of appellant and received payment of the balance of the purchase price of the said land. Appellant Jenkins took possession of the land under the said deed from George Roberts on June 8, 1929, and remained in possession continuously until the date of the trial of this case. In the divorce suit filed by the wife of the said Roberts on June 12, 1929, she claimed, and was awarded, a one half interest in the land, theretofore conveyed by Roberts, alone, as community property. The said Roberts prosecuted an appeal from the judgment so awarding his former wife such one half interest, and that judgment was affirmed by this court. Roberts v. Roberts, 1931, 35 N.M. 593, 4 P.2d 920. Suit in partition of said community realty was thereafter brought by Mrs. Roberts, trader the name of Nannie J. Stone, against her former husband. Appellant Jenkins, having now been ousted of the wife’s portion of the land, thereafter and in July, 1932, filed suit upon the covenants of warranty of his deed to the land, suing in attachment, attaching other lands of the husband, Roberts. Plaintiff (Jenkins) in said suit sought a recovery for one half of the purchase price of the said land, because of his ouster from an undivided one half interest in the premises by the said Nannie Stone Roberts. Lands of the said Roberts situated in Torrance County were attached in said suit. Appellee A. E. Huntsinger, claiming to be the owner of the attached lands situated in Torrance County, under a deed from Roberts alone, of a date prior to the attachment suit, but unrecorded, intervened in said attachment suit; defendant Roberts did not appear and judgment by default was entered against him. Intervenor Huntsinger, in the attachment suit (appellee here), in addition to alleging ownership of the attached land, alleged that the deed from Roberts to appellant Jenkins was wholly void and without effect, on the ground that Roberts’ wife had not joined in the conveyance as required by Chap. 84, Laws of 1915. The issue of what title, if any, was conveyed by the sole deed of Roberts to Jenkins in 1929 was thus first raised and litigated in this suit in attachment, in which appellee' Huntsinger appeared as intervenor. Appellant Jenkins in the attachment suit relied upon failure of warranty. He recovered damages and the land was ordered sold to satisfy the judgment. Then, in the subsequent suit from which this appeal arose, appellant urged that, although the property conveyed' in June of 1929 by the sole deed of' Roberts was then community property, that, nevertheless, the covenants of warranty contained in said deed “had the effect of transferring from said George Roberts to plaintiff all his title after the entry of the decree of divorce and division of community property*’ in Mrs. Roberts’ suit aforementioned, 'and also that it “estopped the said George Roberts and his assigns from denying such transfer.” The'question was decided against this appellant’s contention. , . The said George Roberts thereafter, on March 25, 1935, executed a quitclaim deed to appellee for the entire section *of land located in Lincoln Comity, which he had theretofore endeavored to convey by his sole deed to appellant Jenkins, and the suit at bar to quiet title was brought by appellant to remove the deed made to appellee Hunt-singer as a cloud upon his title. Intervenor Huntsinger prevailed in the lower court and Jenkins prosecutes this appeal. The former wife of Roberts thereafter and on May 2, 1935, conveyed her undivided one half interest in the section of land in Lincoln County to appellant, and she has no interest in this litigation. Disposition of this case can be made without considering all the many and intricate angles which this litigation, involving three separate suits, between some of the parties, at least, or touching the property in question, presents. The one principal point presented by this appeal, and now to be con-' sidered and decided, determines the rights of all parties herein. The point has to do with the effect of a deed of conveyance to community property, under the circumstances here presented, executed by a married man in which his wife did not join. Appellant Jenkins relies upon an interpretation of the statute which -would, under the circumstances of the case, make the Roberts deed “voidable” only and not wholly void and of no effect, and urges that the circumstances by which Roberts subsequently acquired his one-half of the section of land as his separate estate through the divorce action, and notice to Huntsinger of all the facts, should, and would, through relation back, give validity to the' Roberts deed of 1929. Appellee Huntsinger relies upon the invalidity and ineffectiveness from its inception of the deed from Roberts alone to appellant Jenkins in 1929, to convey title. Chapter 84, Laws of 1915 (section 68-403, Comp.St. of 1929), as amended by Chapter 84; Laws of 1927, provides: “The husband has the management and control of the personal property of the community, and during coverture the husband shall have the sole power of disposition of the personal prop- . erty of the community, other than testa-. mentary, as he has of his separate estate; but the husband and wife must join in all deeds and mortgages affecting real estate; Provided, that either husband or wife may convey or mortgage separate property without the other joining in such conveyance or mortgage; and, Provided, further, that any transfer or conveyance attempted to be made of the real property of the community by either husband or wife alone shall be void. and of no effect, except, that the husband may convey directly.to the wife or the wife to the husband without the other joining in' the conveyance.” It is clear that when the deed' from Rob-, erts to the land in question was executed and delivered he was married, that the land was community property, and that the wife did j not join. We have simply the question of determining the effect of an attempted conveyance in view of the controlling statute and under the present circumstances. It becomes largely a question of defining the: meaning of the language of the act which provides for joinder of husband and wife and concludes with the warning “that any transfer or conveyance attempted to be made of the real property of the community by either husband or wife- alone shall be void and of no effect.” Appellant contends for an interpretation of the word “void” as being synonomous with the word “voidable.” It may be conceded that the word “void”, especially when standing alone and unamplified or explained, under many circumstances, has been held to mean “voidable” only. The language as here employed by the legislature, however, seems to us to fairly bear but one interpretation; and that is that any such deed is of no effect for any purpose, and therefore, a nullity. Other language of the statute, we believe, clearly supports this view. It is provided that any such transfer or conveyance “attempted to be made”, etc., shall be “void and of no effect.” The legislature was not disposed to rest upon the possible uncertainty of interpretation of the word “void.” And, to strengthen the language it would appear, it added the phrase “and of no effect.” And if this were not enough to evince a legislative intention of enjoining upon both spouses the absolute necessity of a common agreement and joinder by deed in alienation of all community real property, we should be able to find in the phrase “attempted to be made” additional support for this interpretation. That is to say, the legislature does not dignify the effort at alienation under the circumstances it had condemned as illegal and inefficacious, with the term “conveyance made”, but uses instead the term “conveyance attempted to be made.” (Emphasis ours.) But, still another more convincing fact is to be found in the position of the concluding clause of this statute, as hereinafter to be noticed. The following New Mexico cases have touched upon this statute, though in none of them, appellant contends, and perhaps correctly, were we called upon to decide directly and specifically the question here presented — that is, whether a conveyance made in violation of the statute could not, nevertheless, under such circumstances as here presented, be held voidable merely, rather than wholly void. Adams v. Blumenshine, 27 N. M. 643, 204 P. 66, 20 A.L.R. 369; Terry v. Humphreys, 27 N.M. 564, 203 P. 539; El Paso Cattle Loan Co. v. Stephens & Gardner, 30 N.M. 154, 228 P. 1076; Conley v. Davidson, 35 N.M. 173, 291 P. 489; Fidel v. Venner. 35 N.M. 45, 289 P. 803. We said in the case of Gross, Kelly & Co. v. Bibo, 19 N.M. 495, 145 P. 480, 484, in which we were, considering the use of the unamplified word “void”, used in a composition agreement involving several parties, that whether “voidable” was meant, when the word “void” was actually used, should be determined, in construing the instrument then before the court, in the light of the “whole of the language of the instrument and the manifest purpose it was framed to accomplish.” We recognize that as a correct statement of the principles of the law there being applied. We also pointed out in Kyle v. Chaves, 42 N.M. 21, 74 P.2d 1030, 1035, where we were dealing with a statutory definition, and likewise with the unamplified word “void”, that many situations would call for giving the word “void” the definition of “voidable”. And with the language there used we likewise have no quarrel. We were re-stating a sound, and almost axiomatic, principle. But, may what was said in these cases afford appellant any comfort? We have before us now something quite different, appellee urges. But, before leaving the Kyle case it might be well to point out that Mr. Justice Zinn, the author of that opinion, cautiously observes : “The case for ‘voidable’ is stronger where the statute has not said that the failure to observe a legislative direction or mandate renders the action void.” (Emphasis ours.) This cautionary language reads as though the author of that opinion had in mind this very statute which we are now considering. In any event, language could not have been more aptly chosen. Here the legislature has said that “the failure to observe a legislative direction or mandate renders the action void.” Moreover, it renders it.of “no effect.” When we consider the questions there being considered and the restricted application which may properly be made of the decisions in either of these cases, we may see that nothing was said, or indicated even, which could be said to be in conflict with what we here propose to hold. In Childs v. Reed, 34 Idaho 450, 202 P. 685, 687, the court holds that no subsequent consent of wife and no subsequent execution of a deed by her, will cure the defect inberent from its inception in a deed to community property not signed by the wife. The deed is “absolutely void”, the court holds, if not signed by both husband and wife. “The element of mutuality in such a case must exist from the inception of the contract,” the court said. The Idaho statute (C.S. § 4666) provides : “The husband has the management and control of the community property, except the earnings of the wife for her personal services and the rents and profits of her separate estate. But he cannot sell, convey or encumber the community real estate unless the wife join with him in executing and acknowledging the deed or other instrument of conveyance, by which the real estate is sold, conveyed or encumbered.” In Elliott v. Craig, 45 Idaho 15, 260 P. 433, 434, the court said that under the above-mentioned statute (much less emphatic than our own), “this court, in construing the above statute, has repeatedly held that a contract to convey community property, unless the wife joins with the husband in executing and acknowledging the same, is absolutely void, and this has become the fixed and settled law in this state.” (Emphasis ours.) It was stated in McKinney v. Merritt, 35 Idaho 600, 208 P. 244, that under the statutes of that state then in force “a sale or encumbrance of community property could be made only in the manner as the homestead or community real estate occupied as a residence could formally be conveyed.” We have much the same situation under our statute, Chapter 84, Laws of 1915, which enlarged upon the restriction against alienation by the husband, and then fortified the prohibition as heretofore shown, with additional clear language not found in other cases we have examined. See, also, Wits-Keets-Poo v. Rowton, 28 Idaho 193, 152 P. 1064. In the case of Pipkin v. Williams, 57 Ark. 242, 21 S.W. 433, 435, 38 Am.St.Rep. 241, the court held that the statute meant what it said in using the language that any attempt to convey the homestead is “of any [no] validity”, and that anyone might question the title so attempted to be conveyed, though all heirs and persons directly interested did not question it and preferred to treat the alleged conveyance as good; and, it was there said that “The decided weight of authority is that such deeds are void absolutely, not relatively; that they are mere nullities, and leave the property as if they had not been made.” Whelan v. Adams, 44 Okl. 696, 145 P. 1158, L.R.A.1915D, 551, holds that a statute providing that when the wife abandons the husband and no longer lives with him for a certain period, he may convey the homestead without being joined in the conveyance by her, is repugnant to the state constitution which provides that alienation may be effected only by the joint consent of the husband and wife. The court in that case pointed out that the constitution fixed the status of the homestead right and that alienation must follow the exact method the constitution provided. The court there also cited Maloy et ux. v. Wm. Cameron & Co., 29 Okl. 763, 119 P. 587, to the same effect — that a statute providing that only the spouse not joining in the execution of the instrument of conveyance could avoid it, that the deed was relatively void, only, was likewise unconstitutional. “No alienation of the homestead by the husband alone, in whatever way it may be effected, is of any validity; nothing that he can do or suffer to be done can cast a cloud upon the title; it remains absolutely free from all grants and incumbrances, except those mentioned in the Constitution,” appropriately remarked the court in the former case [44 Okl. 696, 145 P. 1160, L.R.A.1915D, 551.] The question of whether such conveyance, without the joinder of the wife, was voidable only and not absolutely void was likewise decided in a later Oklahoma case, chat of Fetterman v. Franklin et al., 88 Okl. 1, 211 P. 403, where it was shown that the contention of one of the parties to the suit to the effect that the contract to so convey was only voidable was wholly repudiated by that court in the earlier case of Whelan v. Adams, supra. In line with the general tenor of the many decisions on the question of alienation where joinder of husband and wife is required, as it affects the homestead, the California court in Hart v. Church et al. 126 Cal. 471, 58 P. 910, 912, 59 P. 296, 77 Am.St.Rep. 195, in holding the attempt of the one spouse to effect a conveyance was “absolutely void” and not voidable merely, had this to say: “Clearly, the execution and acknowledgement by the wife alone of a mortgage upon the homestead were the merest nullity. Nor did the fact that the husband five months thereafter wrote upon the mortgage paper a statement that he joined and concurred therein, and signed and acknowledged this declaration, add any validity to an instrument, which at the time when it was drawn, signed, acknowledged, and delivered by the wife was nothing more than her own futile and abortive attempt to incumber the homestead.” (Emphasis ours.) It is true that California, since it holds contrary to New Mexico’s holding of a present vested right (Beals v. Ares, 25 N.M. 459, 185 P. 780), that the wife has only a “mere expectancy” in the community property, and no vested right as of the present (Spreckels v. Spreckels, 116 Cal. 339, 48 P. 228, 36 L.R.A. 497, 58 Am. St. Rep. 170, and subsequent cases), has adopted a wholly different theory as it applies to community property and the right of the husband to convey alone. See also McDonald v. Lambert, 43 N.M. 27, 85 P.2d 78, 120 A.L.R. 250, where we point out the distinction in the rule. The California cases can, therefore, be of no aid upon the exact question as it involves community property, but what is said in the foregoing kindred and leading case as to alienation of the homestead of the spouses is in line with the almost universal holding. An attempt by the husband alone to alienate the homestead under a statute, Civ.Code Cal. § 1242, which provided that such homestead “cannot be conveyed or encumbered unless the instrument * * * is * * * acknowledged by both husband and wife,” is a nullity and that any attempt by the husband alone to alienate it “is void from its inception,” and is of no avail that the homestead be afterward abandoned. Gleason et al. v. Spray, 81 Cal. 217, 22 P. 551, 15 Am.St.Rep. 47. Such a deed by the husband alone is “void for all purposes from its inception”, under a statute which provides the husband and wife “shall join” in the conveyance. Hall v. Powell, 8 Okl. 276, 57 P. 168, 170. Under a statute, providing that “no mortgage or other alienation by a married man of his homestead, exempt by law from execution * * * without his wife’s consent, evidenced by her act of joining in the deed, mortgage or other conveyance, shall be valid or of any effect”,, it was held in Rosenthal v. Pleck, 166 Wis. 598, 166 N.W. 445, that not only was such a sole conveyance “absolutely void” but also that it cannot be made the subject of specific performance as to any interest of the husband or for damages. We think the contention of appellant, ably argued and strongly urged upon us here, to the effect that after all, the husband’s interest in the property in question should be subjected to the operation of his, sole deed as a conveyance, now that this status as a married man has become changed by the divorce granted his wife, is well answered by the court of our sister state of Arizona in Rundle v. Winters, 38 Ariz. 239, 298 P. 929, 933. A like contention was there unsuccessfully maintained. There it was unsuccessfully urged that the contract to convey was a valid contract so far as the interest of the husband was concerned, and that “at some later date, in case the community is dissolved by death or otherwise, he would have a separate estate against' which it might be enforced.” The court was not greatly intrigued by the argument, as, indeed, we are not. It pointed out that the attempted conveyance was “void and not merely suspended in its operation so far as the realty itself is concerned.” Continuing, Mr. Justice Lockwood, the author of the opinion, states “The statute does not say that the right of either spouse to incumber community realty shall be suspended during the continuance of the commünity, but that they shall not incumber it. The judgment of the court, it will be noticed, in no way determined .whether or not the making of the contract between Reno W. Winters and defendant Rundle created any rights as between them, but merely that it was of no effect as against the property.” (Emphasis ours.) It should be noticed also that the Arizona court was dealing with a statute much less emphatic than our own. The statute there provided only that “No conveyance, transfer, mortgage or incumbrance of any real estate which is the common property of husband and wife * * * shall he valid unless such conveyance * * * shall be executed and acknowledged by both the husband and wife.” Civ.Codel913, par. 2061. “The words 'of no effect’ must be construed to mean 'no effect for any purpose.’ ” Commonwealth v. Connell, 277 Pa. 154, 120 A. 780, 781. “The phrase ‘of no effect’ is synonymous with ‘void’ and not with ‘voidable.’ ” Mayor and Aldermen of Jersey City v. Davis, 80 N.J.L. 609, 76 A. 969. See also Tarangioli v. Raphael, 158 A. 95, 10 N.J.Misc. 171. Reformation of an instrument of conveyance may not be had under circumstances such as these where the deed was not, in the first place, “in substantial compliance with statutory requirement.” O’Malley v. Ruddy et al., 79 Wis. 147, 48 N.W. 116, 24 Am.St.Rep. 702. The Wisconsin act under consideration in the above case makes the signature of the wife to the mortgage of the homestead essential. It says: “No mortgage or other alienation * * * shall be valid or of any effect * * * without the signature of [the] wife to the same.” Rev.St.Wis. 1878, § 2203. In the above case the wife came into court and consented to a correction of the deed to allow the inclusion of the homestead, omitted, she claims, by mistake. The court held that the only way she could effect this result would be to execute a new mortgage or conveyance. See also Whelan v. Adams, 44 Okl. 696, 145 P. 1158, L.R.A.1915D, 551; Standard Savings & Loan Ass’n v. Acton, 178 Okl. 400, 63 P.2d 15, 16; Hart v. Church et al., 126 Cal. 471, 58 P. 910, 59 P. 296, 77 Am.St.Rep. 195; Seiffert & Wiese Lumber Co. v. Hartwell et al., 94 Iowa 576, 63 N.W. 333, 58 Am.St.Rep. 413; Martin v. Harrington et al., 73 Vt. 193, 50 A. 1074, 87 Am.St.Rep. 704, upon the question of the absolute invalidity of deeds of conveyance in which both spouses do not join, under constitutional or statutory provision similar to our own, and holding generally that such void and invalid deeds or instruments of conveyance were not, in these cases, cured by subsequent consent, ratification, estoppel, etc. Conveyances affecting homesteads were generally involved in the foregoing cases,, but clearly, the same rule would apply in the case of community property under a statute like our own. A clear legislative purpose may be seen in both circumstances. The courts have been quite uniformly strict in applying the constitutional and statutory rules that both husband and wife, under requirements even less strict than those of our statutes, must join or the instrument is absolutely void and no conveyance is thereby effected. It is even, generally held that, where the law provides that the conveyance shall be by a single written instrument, executed and acknowledged personally by both husband and wife,, separate instruments signed by the spouses, separately will not suffice. 26 Am.Jur. 82, See. 129. Many cases .could be added to those already cited to the question, particularly upon the homestead rule, which we believe to offer a fair and reasonable analogy as to legislative purpose; but we deem further citation of' orttside authority upon the point unnecessary. Let us, however, refer again to our particular statute and the decisions of our own court. In Miera v. Miera, 25 N.M. 299, 181 P. 583, 586, we held in interpreting the statute here in question, that a deed of conveyance signed by one spouse alone was “void and conferred no title.” See also El Paso Cattle Loan Co., etc., v. Stephens & Gardner, 30 N.M. 154, 228 P. 1076; Adams v. Blumenshine, 27 N.M. 643, 204 P. 66, 20 A.L.R. 369; Terry v. Humphreys, 27 N.M. 564, 203 P. 539; McKinney v. Merritt, 35 Idaho 600, 208 P. 244; Hughes v. Latour Creek Ry. Co., 30 Idaho 475, 166 P. 219. We said in the closing paragraph in Terry v. Humphreys, supra [27 N.M. 564, 203 P. 541], something which seems significant, and which indicates that in this, as in all other cases where we have touched upon the question, we obviously always assumed there to be but one possible interpretation of this statute. We were never heretofore called upon to consider that the term “void and of no effect” as used in this statute, could mean “voidable”, instead of “having no validity from its inception.” We said in the Terry case: “The question raised by the cross-appellant, Artesia Gas & Oil Company, in his assignment of error that the court erred in finding one-third of the property in question was the separate property of the wife is rendered immaterial by our decision that joinder by the wife is essential to give validity to an instrument like the one in suit.” (Emphasis ours.) In the El Paso Cattle Loan Company case, supra [30 N.M. 154, 228 P. 1077], we pointed out that there must be joinder of husband and wife in a mortgage of community real estate and that, in view of the statute, an equitable mortgage could not be' declared because “by this statute both the' actual and the fictional mortgage are prohibited,” when given by the husband alone. In Terry v. Humphreys, supra, this court, in referring to the history and background of legislative enactments and speaking of the modification of the husband’s control over the community property in this state,, used language which we believe cannot be improved upon, and we quote: “By the terms of chapter 84, Laws 1915, no transfer or conveyance of the real property of the community could be made without both husband and wife joining, and the control and right of disposition of the husband alone of the real property of the community was done away with. As we construe the statute by its plain terms at the present time, neither husband nor wife can make a transfer or conveyance, of the real property of the community without the other joining in such conveyance or transfer,, and if such transfer or conveyance is attempted of such real property of the community by either husband or wife alone, such transfer or conveyance is void, and of no effect.” (Emphasis ours.) Thus it will be seen that we have heretofore said that the old practice of allowing the husband to alienate by deed the community real property has been “done away with”. Our court in that case found no great difficulty in appraising the statute as one of “plain terms”. If the practice of single alienation by one spouse has been “done away with” it must not exist any more. Hence, any effort to breathe life into an instrument for which there was never any authority for its making, and the attempted execution of which the “plain terms” of the statute condemns in advance as a nullity, and completely ineffective, ought to be, as it is, wholly unavailing. The legislature of 1915 was not satisfied with the language employed in an earlier but subsequently repealed statute (Chap. 62, Laws 1901) which provided that “neither husband nor wife shall convey, * * * incumber or dispose of” any real property of the community, “unless both join in the execution thereof.” § 6. Nor, with the language employed in the statute (now to be amended) restraining alienation of the homestead which could not be affected “without the written consent of the wife.” Chap. 37, Laws 1907, § 16; Sec. 2766, N.M. Statutes Ann.1915. Perhaps it would have been sufficient,to stop with the language, “but the husband and wife must join in all deeds and mortgages affecting real estate”, Laws 1915, c. 84, § 1, except for concern over future interpretation and the possibility of reliance upon the term “void” as meaning only “voidable” as here attempted, and which may often be done (Kyle v. Chaves, 42 N. M. 21, 74 P.2d 1030) to defeat the purpose the law-makers must have had in mind. So, after treating, in another and separated sentence, the right of either spouse to convey or mortgage separate property without the other joining, we find the legislature coming back to the subject of alienation of community real property with the significant closing paragraph. Such repetition could serve no particular purpose, in view of what had gone before, unless it were desired to foreclose all possible doubt as to the purpose and intention of the law-makers. The closing paragraph, prefaced with the “and, provided further” clause with which we are now familiar, must be considered as most significant. . Thus, this legislation was something more than a mere enlargement upon the- restriction as to alienation imposed upon the husband as to the homestead of the spouses. The lawmakers were not content to rest with an employment of the exact or similar language in the new enactment, extended now to cover all property of the community, but it added the clearer and more potent term, “shall be void and of no effect.” Obviously, when the legislature had come now to a recognition of what had been so often asserted by many, that the interest of the wife being more than a “mere expectancy” and having a real present interest in the property of the community, she should have an equal voice in the matter of its alienation; and public policy would dictate some such safeguards to any attempt to alienate without her joinder. Ample reason can be readily found in support of a rule that would, under the theory upon which our community property law is administered, thus surely and effectively safeguard the wife’s interest. She, an equal shareholder, and yet, with no voice in management of the property, should not be subjected to the hazards of alienation by the husband alone, where consent, waiver, or other like defenses to her claim might ordinarily be successfully asserted. The act, in other words, makes of the effort by the husband alone an “abortive attempt” and the “merest nullity”. Hart v. Church, supra. We are thus called upon to interpret language which seems to us could bear but one meaning, when we examine the statute in the light of the whole, and “the manifest purpose it was framed to accomplish.” Gross, Kelly & Co. v. Bibo, supra. We have before us more than a word. We have more than a phrase; and, we have even more than the two separate phrases. We have, to fortify us' in according the plain and simple definition to the language, other significant circumstances relating to the position of the phrases in the statute, and the change from • the less positive to the more certain the language used in earlier statutes. If the deed which Roberts attempted to execute as a conveyance in which his wife did not join, is void and of no effect, as the statute provides, it does not become important to a decision of this case whether other error assigned and relied upon by appellant is well taken. For example, a void deed, one absolutely ineffectual to co'nvéy title and which is entirely without effect as an instrument of conveyance, cannot be made valid by such circumstances as are relied upon by appellant. To have retained part of .the purchase price paid at the time of the attempted conveyance, or to have collected upon the note given for the remainder thereof after his divorce from his .wife and when he no. longer would be required to secure the sig-' nature of a wife to a conveyance of his portion of the community property, does not change the situation to defeat appellee’s title. Also, the point whether, in any event, appellant Jenkins is not barred from recovery in this present suit to quiet title, because of the clear position he took in the attachment suit where he sought and recovered judgment for breach of the covenants of ownership and warranty contained in his deed from Roberts in 1929, presents an interesting question; but it does not become necessary for us to decide whether he is thus barred by res adjudicata, or election of remedy, in view of our disposition of the other and principal question, tc the effect that the deed upon which appellant relies conveyed no title, in any event. Appellant cannot rely upon the conduct on the part of Roberts or others which would support the theory of what appellant says was a “seconddelivery” of the deed; that is, a delivery considered as having been made after the impediment presented by the marital relation had been removed by divorce and when he apparently wanted to convey title. When we hold, as we do, that the attempted conveyance was from the beginning “void and of no effect”, we have nothing upon which to base support for any of the other considerations so ably and fully presented by counsel for appellant. We start with nothing, and we wind up with nothing, so far as we may predicate a conveyance upon the attempted deed of June •8, 1929. Appellee appropriately points out that the remedy is against the maker under the covenants contained in this Roberts deed for breach of contract and failure of the warranties, as, indeed, appellant himself must have sensed, since he moved, in an earlier suit, to assert, and successfully asserted, such remedy. We have held that may be done. Conley v. Davidson, 35 N.M. 173, 291 P. 489. Finding no error, the judgment is affirmed, and it is so ordered. BRICE, C. J., and ZINN and SADLER, JJ., concur.