(dissenting).
It seems to me that in considering the case, the majority has lost sight of the fact that since the property was acquired in New Mexico in the name of a married man, it is presumptively community property. § 57-4-1, N.M.S.A.1953.
We start out with this presumption. It is a rebuttable presumption subject to being overcome by proof in the case. If the money used for the purchase was separate property of the wife in Texas, and I am willing to assume that it was, brought into New Mexico to make the purchase, this might be sufficient proof to overcome the presumption of the community estate in the property and establish its separate character, if nothing more appeared. Conley v. Quinn, 66 N.M. 242, 346 P.2d 1030.
However, there is considerable proof supporting finding No. 8 of the trial court to the effect that “it was the intention of both parties to have and hold and own all that they had jointly and to share all that they had.” This intention was clearly stated concerning the holding of the real estate in dispute. Since intention is controlling, Menger v. Otero County State Bank, 44 N.M. 82, 98 P.2d 834; In re Trimble’s Estate, 57 N.M. 51, 253 P.2d 805; Tomaier v. Tomaier (1944), 23 Cal.2d 754, 146 P.2d 905, why do we have to look further ? This is particularly true since there is no attack made on the findings.
There is no question that finding No. 8 is supported by substantial evidence, but the exact meaning of “joint ownership” is not clear. The only estates in which property can be held by husband and wife are as “joint tenants, tenants in common, or as community property.” § 57-3-2, N.M.S.A. 1953. "Joint ownership” does not necessarily mean “joint tenancy.” Each of the mentioned estates creates a form of joint ownership. See In re Huggins’ Estate, 96 N.J.Eq. 275, 125 A. 27.
The majority have quoted some of the evidence and there is considerable more to the same effect. Since no attack is made on the findings, I do not see the materiality of the question of whether the proof must be by “clear, strong and convincing” evidence or simply by substantial evidence.
I would point out that there is no basis in authority prior to Chavez v. Chavez, 56 N.M. 393, 244 P.2d 781, for imposing a measure of proof different or more stringent in a case of transmutation than in other cases. This is discussed most forcefully and effectively by Justice Sadler in his dissent in In re Trimble’s Estate, supra. T feel that just as Justice Sadler’s dissent in McDonald v. Lambert, 43 N.M. 27, 85 P.2d 78, 120 A.L.R. 250, was accepted by this court as the law-in Chavez v. Chavez, supra, so should we now accept his dissent in In re Trimble’s Estate, supra, as the law covering the proper measure of proof in a case such as this.
Be this as it may, it is my view that everything considered, the trial court’s findings supported by substantial evidence should be upheld by us, and all reasonable inferences which may be drawn from the proof should be resolved in support of the findings. Nally v. Texas-Arizona Motor Freight, Inc., 69 N.M. 491, 368 P.2d 806; Davis v. Hartley, 69 N.M. 91, 364 P.2d 349. Compare Huston v. Huston, 56 N.M. 203, 242 P.2d 495.
The cause should be remanded to the district court so that proper findings and conclusions could be made as to the nature of the estate intended and resulting when the land in question was purchased and title taken in the name of the husband, this determination to be based on the facts as proved and in the light of the applicable law of New Mexico. An erroneous result is reached when it is determined that the nature of the money in Texas prior to its being brought to New Mexico and invested in New Mexico real estate is controlling. This is what the majority have done. They give no weight whatsoever to the testimony as to the intention of the parties, nor to the trial court’s findings with reference thereto, nor to the presumption of community ownership resulting from taking title in the husband’s name. In my view, these are the controlling considerations.
For the reasons stated, I respectfully dissent.