(dissenting).
I find myself in disagreement with the majority in this case. The holding that venue in all cases in which real property may be involved is in the county where the land is situated, is incorrect. The cases are in accord that actions are local only where they turn on the title as distinguished from an action to establish a personal obligation, in this instance a lien for attorney fees. Stated otherwise, actions are transitory where interest in land is merely incidental to the establishment of a personal obligation. Peisker v. Chavez, Dist. Judge, 46 N.M. 159, 123 P.2d 726; Alexander v. Cleland, 13 N.M. 524, 86 P. 425; Stearns-Roger Mfg. Co. v. Aztec Gold Mining & Milling Co., 14 N.M. 300, 93 P. 706; Cleveland v. Bateman, 21 N.M. 675, 158 P. 648, Ann.Cas. 1918E, 1011; Griffith v. Humble, 46 N.M. 113, 122 P.2d 134; Atler v. Stolz, 38 N.M. 529, 37 P.2d 243; State ex rel. Truitt v. District Court, 44 N.M. 16, 96 P.2d 710, 126 A.L.R. 651; Rosser v. Rosser, 42 N.M. 360, 78 P.2d 1110; McLennan v. Holbrook, 143 Or. 458, 23 P.2d 137; Azwell v. Mohamed, 164 Miss. 80, 143 So. 863; Adams v. Colonial & United States Mortgage Co., 82 Miss. 263, 34 So. 482, 17 L.R.A.,N.S., 138; Morrison v. Clarksburg Coal & Coke Co., 52 W.Va. 331, 43 S.E. 102; Baker v. Farmers’ Bank, 220 Mo.App. 85, 279 S.W. 428; State ex rel. Nyquist v. District Court, 164 Minn. 433, 205 N.W. 284.
In Atler v. Stolz, supra the action was by a judgment debter to compel the conveyance of the land involved, that the judgment be declared a first lien, and the land sold for its satisfaction. While the action was held to be local, it was strongly suggested that the plaintiff nevertheless had a right to establish her lien, the court saying:
“The most that appellant could demand was the establishment of her lien. Except for the purpose of letting her lien in, no case was made for disturbing the several transactions among the defendants.”
In Alexander v. Cleland, supra, in the course of the opinion the court held [13 N.M. 524, 86 P. 427] :
“However created, a lien (and a mortgage is a lien) is not an interest in land, but m,erely a security for the payment of a debt, and a contract to release a mortgage is not within the statute.”
In State ex rel. Nyquist v. District Court, supra, the question was whether an action to cancel a contract for the sale of real estate for fraud, was local or transitory and the court disposed' of the question in the following language [164 Minn. 433, 205 N.W. 285] :
“Actions on contracts, including those relating to real estate, have always been recognized as transitory. * * H= »
In Neet v. Holmes, 19 Cal.2d 605, 122 P.2d 557, 560, the action was for an accounting, for a declaration of trust, and for other relief. The question was one of venue. The court said:
“In Turlock Theatre Co. v. Laws [12 Cal.2d 573, 86 P.2d 345, 120 A.L.R. 786], supra, it was pointed out that an action is transitory rather than local where the right to any real property sought by the plaintiffs depends upon the outcome of a controversy concerning a personal obligation of the defendants, and the judgment rendered thereon would be one to enforce such an obligation. The nature of the action here is essentially transitory, that is, the defendants would be entitled to have it tried in the county of their residence, if the determination of an estate or interest in land is merely incidental to the determination of a cause for equitable relief in trust, fraud, or contract. The nature of the action is local, and must be tried in the county where the land is situated, where it turns on the title to property as distinct from the personal obligation, and the decree operates ex proprio vigore on the title. * * ‡
“In the present case it is obvious that the action turns principally on the personal obligation, as distinct from the title, and that judgment for any mining properties not now owned by the plaintiffs would follow if at all, merely as an incident of the judgment establishing the personal obligation.”
In Lanier v. Looney, Tex.Civ.App., 2 S.W.2d 347, 350, three persons entered into a contract similar to the one involved here. The question was one of venue and the court held:
“Appellant’s theory pf the case apparently is that a suit to enforce an oral agreement entered into between parties to become jointly interested in the mineral rights to land, subsequently acquired by leases taken in the name of one of the parties, and in which the other party has fully performed his part of the agreement, is a suit for the recovery of land, and that, under the mandatory provisions of the statute above quoted, no district court of the state has jurisdiction to try such suit, except the court in the county in which the land is situated. We cannot agree to this contention, either that such a suit is one to recover land, or that, because of the mandatory provision of section 14 of the venue statute, every district court other than the one in the county in which the.land is situated is denied jurisdiction, to try same. In the instant case, the agreement is that the lease be taken in the name of appellant, and the judgment sought and obtained is not one to change this record title, except in so far as a judgment declaring appellee’s interest in the leases and that appellant holds such interest in trust for appellee be notice of that fact. * * * ”
The majority opinion is based on the language found in the venue statute, § 19-501, 1941 Comp., making local the proceeding “when lands or any interest in lands” are the object of the suit, “in whole or in part.” Similar language is found in our first statute authorizing suits to quiet title, “by anyone having or claiming any interest in land”, Laws 1884, ch. 6, § 1, and carried forward in the same form through various amendments to date, § 25-1301, 1941 Comp. This statute has been construed on several occasions, before and after statehood, in which we held a lien was and is not an “interest” in land. There is then posed the question, did the word “interest” have a different meaning in the venue statute enacted in 1876 from what it had in the quieting title statute enacted in 1884? Obviously, the majority so holds. The cases holding the word “interest” in quieting title statute does not embrace “liens” are Stanton v. Catron, 8 N.M. 355, 45 P, 884; Holthoff v. Freudenthal, 22 N.M. 377, 162 P. 173; Security Investment & Development Co. v. Capital City Bank, 22 N.M. 469, 164 P. 829; Pankey v. Ortiz, 26 N.M. 575, 195 P. 906, 30 A.L.R. 92.
Since title to lands is not involved and will not be until such time appellee seeks to enforce his lien, the action was properly brought in Sierra County. The majority having reached a different conclusion, I dissent.
LUJAN, J., concurs.