(dissenting).
In this case the Barelas entered into a purchase agreement with Locer May 7, 1970, to purchase the property in question. It has the following language in the agreement:
Seller also agrees to grant to purchaser an option of first refusal to acquire mineral rights on the said premises and such option shall survive and be enforceable for a period of one year after the death of seller.
Locer did not grant Barelas this option of first refusal. The deed of June 22nd 1970 contains this language:
[Rjeserving unto the Grantor, his heirs, executors, administrators and assigns, all minerals of every type, character and description, including oil, gas and hydrocarbons, in the above described lands.
Barelas accepted the deed and did not allege an interest of any kind in the minerals until eleven years later when gas wells were drilled and producing, at which time Barelas filed suit. As it turns out, Locer only owned 50% of the mineral interests at the time he sold the surface rights to Barelas. He had sold the other 50% prior to 1955. He never has sold the remaining mineral interests.
Until now, in New Mexico we followed the doctrine of merger. As pointed out in El Sol Corp. v. Jones, 97 N.M. 645, 642 P.2d 1104 (1982):
Under the doctrine of merger, we must look only to the deed to determine the rights of the parties.
Since the deed conveys title in fee simple absolute without reservation or reference to the prior agreement, the prior agreement to convey between the same parties cannot be introduced to vary or contradict the title conveyed by the deed.
This case is much stronger than El Sol in that the deed from Locer to Barelas that conveyed the interest in question, specifically excluded the mineral rights. What else could Locer do to reserve the mineral interest he owned?
Even if there were no merger as a matter of law, the most that could arise would' be a question of fact as to what the parties intended by the language of the purchase agreement. In that regard, the court made two findings of fact that are adequately supported by the testimony.
13. At any time material to this action, Defendant made no negligent misrepresentations, misrepresentation or fraudulent statements to the Plaintiffs herein.
14. That no mutual mistake of fact was encountered or existed at any time between the Plaintiffs and the Defendant relative to this action.
Findings of fact supported by substantial evidence are not disturbed on appeal. In re Valdez, 88 N.M. 338, 540 P.2d 818 (1975). It is not the appellate function to weigh evidence, or substitute its judgment for that of the trial court. Getz v. Equitable Life Assurance Society of United States, 90 N.M. 195, 561 P.2d 468, cert. denied, 434 U.S. 834, 98 S.Ct. 121, 54 L.Ed.2d 95 (1977).
This case is going to unsettle a great deal of law in New Mexico. The majority neither overrules or in my view distinguishes El Sol, so it continues to be the law to apply to cases in New Mexico, except this one. I believe that both the facts and the law support the trial court’s decision.
STOWERS, J., concurs.