(dissenting).
{21} Because the documents admitted into evidence are insufficient as a matter of law to satisfy the statute of frauds as set forth in both Pitek v. McGuire, 51 N.M. 364, 184 P.2d 647 (1947) and Aragon v. Boyd, 80 N.M. 14, 450 P.2d 614 (1969), I respectfully dissent. The 1954 letter precedes the alleged oral agreement, and must therefore be referred to in subsequent writings for it to be considered evidence of an agreement. Neither the quitclaim deed written over two years after the 1954 letter nor the 1956 letter refers to the 1954 letter. In addition, the 1956 letter does not suggest an agreement supported by consideration. In Aragon, the case on which the majority relies, it was clear from the exhibits alone that the plaintiff had both foregone the right to receive cash and volunteered her time and money to clean and repair the property she was told she would inherit. 80 N.M. at 19, 450 P.2d at 619. This ease is very different in that none of the documents admitted into evidence mention the promises made by each of the parties to the alleged agreement. In my judgment, we should require at least as much as was required in Aragon to override the provisions of a last will and testament. In this case, none of the parties to the alleged oral agreement testified at trial. Eddie and Tito are deceased, and Ted did not testify about his understanding of the oral agreement. Moreover, Ted returned the land deed referred to in the 1956 letter to Eddie, and according to the testimony of Olga Varoz, Ted’s wife, Eddie declined to convey the land to Ted by deed during Eddie’s life, despite their repeated requests.
{22} Eddie Varoz died on September 15, 2000, survived by his only child, Christina Varoz. On July 7, 1988, Eddie executed a last will and testament, which left all of his property to his only daughter. The property that is the subject of this appeal was land in northern New Mexico that had originally belonged to Eddie’s parents which has been vacant since the death of Eddie’s mother. Despite a tax deed that conveyed the subject property to the three siblings who were the heirs of Mrs. Eduardo Varoz, Eddie was the only sibling who paid the property taxes. When Christina Varoz attempted to probate her father’s will, Ted Varoz, her only living uncle on her father’s side, sought to disinherit her of the subject property, claiming that before her birth, her father had agreed to give Ted the land if Eddie predeceased him. Ted claimed that Eddie agreed to give up his interest in the land because Ted agreed that Eddie could have title to the property exclusively in his name so that Eddie could benefit from a veteran’s exemption while Eddie continued to pay all of the property taxes. Therefore, according to Ted, Eddie agreed to pay all of the property taxes on the land for the rest of his life, and also agree that if he died before Ted, Eddie would leave all of the property to Ted. To support this alleged agreement, Ted introduced at trial the two letters quoted in the majority opinion.
{23} Although the majority acknowledges that an oral agreement to make a will must be evidenced by a subsequent writing, the Court relies almost entirely on the 1954 letter, which by its own terms preceded any oral agreement. Such reliance would not be in error if, as the majority opinion expresses, writings subsequent to the oral agreement either refer to or show how the writing made before the alleged agreement relates to the oral agreement. In this case, neither the quitclaim deed signed two years after the 1954 letter nor the July 9, 1956 letter refers to the 1954 letter or shows how it relates to the alleged oral agreement.
{24} More importantly, the documents on which the majority relies should not have been admitted into evidence because, as pointed out by the Court of Appeals, they do not memorialize a transaction. Eddie paid the property taxes all along, a responsibility that was not exclusively his. If there had been a default in payment of the property taxes, all of the siblings would have lost the property. In addition, Ted’s wife testified that Ted never intended to convey his interest in the property to Eddie, he simply wanted the title to be in Eddie’s name so that Eddie could pay lower property taxes by virtue of his veteran’s exemption. As Ted’s wife explained, Ted agreed to sign the quitclaim deed, saying that he was doing so on “condition that it is still partly mine. I’m also an owner to this land.”
{25} After reading the documents and reviewing the trial testimony, I believe that Ted never intended to give up his interest in the land. However, I cannot agree that the documents support an agreement that Eddie would pay all of the property taxes on the land and then simply convey his interest to Ted without consideration. For the foregoing reasons, I would affirm the Court of Appeals and remand to the district court to enter judgment in favor of Christina Varoz.