tioned – much less requested or argued – by the parties[.]” Id. [13] N.M. Stat. Ann. § 14-9-1. [14] N.M. Stat. Ann. § 14-9-2. Note that there is no federal or state statute providing that the BLM records, either in Washington, D.C. or in the state offices, provide actual or constructive notice to persons acquiring interests in federal oil and gas leases. [15] Id. By contrast “actual” notice is present when a party has actual knowledge of the existence of a competing claim such as a physical copy of an unrecorded deed. “Inquiry” notice exists when facts are present that would put an ordinary rea- sonable person a heightened duty to investigate a possible competing claim. Both actual and inqui- ry notice are highly fact specific. [16] See City of Rio Rancho v. Amrep Southwest Inc., 260 P.3d 414 (N.M. 2011). [17] N.M. Stat. Ann. § 14-9-3. [18] N.M. Stat. Ann. § 45-3-907–08. [19] N.M. Stat. Ann. § 45-4-201, et seq . [20] See 2024 N.M. App. Unpub. LEXIS 241 at 11-12. [21] Id. [22] 427 P.2d 230 (N.M. 1967) (discussing the differ- ence between voidable and void instruments and holding that deeds not fraudulent on their face though cancellable by the state did not defeat a claim by a BFP). See also Jeffers v. Doel , 658 P.2d 426 (N.M. 1982) (noting that N.M. Stat. Ann. § 40-9-3 (1923, amended 1990) protects BFPs even if a conveyance was void under N.M. Stat. Ann. § 40-3-13 (1975, amended 1993)). [23] See 2024 N.M. App. Unpub. LEXIS 241 at 15-16. [24] Id. at 10.
and voidable instruments can serve to convey title to a BFP. [22] Thus, just because Robert W. David obtained his title through a deed of distribution executed by a Colorado personal representative did not mean he forfeit his status as a BFP. The court, therefore, held that summary judgment was inappropriate in this case and remanded it to the trial court to determine whether Mr. David had “actual” knowledge about any aspect of Robert Koch’s estate proceedings and might have lost his BFP status.[23] Conclusion & Takeaways The concept of a “BFP” is a useful tool for settling titles and extinguishing certain competing ownership claims. Koch holds that in the absence of actual notice of title deficiencies, a party is a BFP if he takes ownership under a duly executed and recorded deed of distribution. This may be true even if a foreign personal representative was not admitted in New Mexico as a foreign domiciliary personal representative. This case also serves as a reminder that summary judgment is disfavored in New Mexico.[24] References [ 1] 2024 N.M. App. Unpub. LEXIS 241. The origi- nal, unpublished opinion was filed on May 16, 2024, at 2024 N.M. App. Unpub. LEXIS 156 was withdrawn, and this opinion was substituted in its place. The facts have been simplified for the purposes of this article. [2] A “void” instrument is one that is unenforceable and of no effect at its inception. A “voidable” in- strument requires some further action from one of the parties to be set aside. [3] Id. at 3-5. [4] Id . [5] Id. at 5-6. [6] Id . at 6. [7] Being the heirs of Robert and Anne Koch. Id. at 3. [8] Being the successors and assigns of Robert W. Da- vid. Id. at 3-4. [9] Id. at 7-9. [10] Id . [11] Id . at 9-10. [12] Id . at 10. Note that this and several other ele- ments of the district court’s ruling “were not men-
The Author:
Brad Gibbs Brad represents clients in connection with upstream energy transactions, complex mineral titles, pooling issues, lease analysis, joint operating agreements, surface use issues, title curative and general oil and gas business matters.
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G rowth T hrough E ducat i on - J uly / A ugus t / S ept ember 2024
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