{1} At issue in this appeal is the ownership of a single-family residence in Clovis, New Mexico (the Property). Tobore Kokoricha and Oyinkan Kokoricha (the Kokorichas) appeal the district court’s order dismissing with prejudice their request for a declaratory judgment stating that they are good-faith purchasers for value of the Property. The Kokorichas contend that the district court erred when it concluded that the Kokorichas’ purchase of the Property was subject to a notice of lis pendens and that the Kokorichas’ title to the Property was subject to the same deficiencies as the title of their immediate predecessors in interest. We reverse the district court’s ruling and remand for further factual determinations as set forth below.
BACKGROUND
{2} The following facts are undisputed. The Kokorichas purchased the Property on March 27, 2007, for $88,000. Upon purchase, the Kokorichas received a warranty deed to the Property, which was duly recorded with the county clerk. At the time of the Kokorichas’ purchase, the Property was the subject of a lengthy and ongoing probate litigation. The Kokorichas claim that they were unaware of the pending litigation when they purchased the Property.
{3} The probate litigation was initiated in 2001 by Pat E. White, as personal representative of the Estate of Donald I. Keiner (the Estate). Mr. Keiner had owned the Property until shortly before his death, when he deeded the Property to his nephew, Lari Bollinger (Nephew). After Mr. Keiner’s death, the Estate alleged that Nephew had asserted undue influence over Mr. Keiner in obtaining the deed. The Estate initiated an action within the probate proceeding to set aside the deed from Mr. Keiner to Nephew and to have the Property and other assets in Nephew’s possession returned to the Estate. The Estate did not record a notice of lis pendens on the Property at the initiation of these proceedings.
{4} During the first two years of the litigation, the Property changed hands three times. The first two exchanges were between family members and for nominal purchase prices. The third exchange took place on August 6, 2003, when the Kokorichas’ grantors (Grantors) purchased the Property for $42,500. It is undisputed that at the time of Grantors’ purchase of the Property, no notice of lis pendens had been recorded, and Grantors were not a party to the ongoing probate litigation.
{5} On September 23, 2003, upon motion by the Estate, the district court issued an order joining Grantors to the probate litigation. Three days later, on September 26, 2003, the Estate recorded a notice of lis pendens on the Property. Subsequently, on November 4, 2003, the Estate recorded an amendment to lis pendens. The record does not include a copy of the notice of lis pendens or the amendment, and it is unclear from the record why the amendment was necessary.
{6} On November 12, 2003, Grantors moved to be dismissed as parties to the
{7} On March 27, 2007, a little more than a year after the Estate’s release of lis pendens, the Kokorichas purchased the Property from Grantors. The Kokorichas had not at any time been parties to the probate litigation, and they claim they were unaware of the probate litigation at the time they purchased the property.
{8} On October 31, 2007, the district court issued a final order in the probate litigation declaring that the deed from Mr. Keiner to Nephew had been fraudulently obtained and was therefore void and invalid and that all subsequent deeds were also invalid. The order returned possession of the Property to the Estate. Thereafter, the personal representative of the Estate conveyed the Property to Pat E. White and Wessie White (the Whites), as joint tenants, by executor’s deed dated November 30, 2007. The Whites then took steps to take possession and control of the Property. Upon learning of the Whites’ actions, the Kokorichas filed emergency motions to reopen and to intervene in the probate proceeding and filed a request for declaratory judgment stating that they were “good-faith purchasers of the Property for value and declaring the parties’ ownership rights and status with regard to the Property.” The court granted the motions to reopen and to intervene but ultimately dismissed with prejudice the Kokorichas’ request for declaratory judgment. The court found that the release of lis pendens recorded by the Estate was ineffective and that the Kokorichas could obtain no better title to the Property than their predecessors in title possessed.
{9} On appeal, the Kokorichas argue that the district court erred when it concluded as a matter of law that (1) despite being released by the Estate, the notice of lis pen-dens was in effect at the time the Kokorichas purchased the Property, and (2) the Kokorichas were subject to the same failures of title to which Grantors were subject. The Kokoriehas also argue that, because they were not parties to the probate litigation, they were not bound by the district court’s order in that proceeding, that the district court lacked personal jurisdiction to enter a binding order against them, and that lack of notice violated their rights to due process. We find sufficient reason to overturn the district court’s ruling based on the Kokorichas’ first two arguments, and we remand for further factual findings on whether the Kokorichas had actual notice of the probate litigation.
DISCUSSION
Standard of Review
{10} The parties disagree as to the appropriate standard of review to be applied in the current case. The Kokorichas argue that the facts of the case are not in dispute, and the only issues raised on appeal are questions of law, and therefore, a de novo review is appropriate. On the other hand, the Estate asserts that substantial evidence is the appropriate standard to apply. Citing Ponder v. State Farm Mutual Automobile Insurance Co.,
{11} The resolution of this appeal depends solely on two legal questions. First, was the notice of lis pendens in effect at the time the Kokorichas purchased the Property? And second, were the Kokorichas subject to the possible deficiencies in Grantors’
Effect of the Release of Lis Pendens
{12} The Kokorichas argue that the district court erred when it concluded as a matter of law that, despite being previously released by the Estate, the notice of lis pen-dens was in effect at the time the Kokorichas purchased the Property. We agree that the district court erred.
{13} “A lis pendens is a vehicle for permitting an individual, involved in an action which affects title, to put subsequent purchasers on notice of pending claims involving the property.” Salas v. Bolagh,
{14} In New Mexico, the lis pen-dens doctrine is codified in NMSA 1978, Sections 38-1-14 to -15 (1953, as amended through 1965). Section 38-1-14 states that in all actions affecting the title to real estate, the plaintiff may record a notice of the pendency of the suit, and that notice “shall be constructive notice to a purchaser or encumbrancer of the property concerned; and any person whose conveyance is subsequently recorded ... shall be bound by all the proceedings taken after the recording of the notice to the same extent as if he were made a party to the said action.” If a judgment is ultimately rendered in favor of the party filing the notice of lis pendens, “the rights of that party relate back to the date of the notice.” Title Guar. & Ins. Co.,
{15} In the present case, the Estate did not exercise its right to record a notice of lis pendens when it initiated the legal action involving the Property; however, the Estate did record a notice of lis pendens after Grantors were joined in the lawsuit, approximately two years into the probate litigation. When the district court dismissed Grantors without prejudice from the probate litigation for insufficiency of process, the Estate chose to record a release of lis pendens on the Property instead of properly serving and attempting to rejoin Grantors to the suit. The threshold question in this appeal is the effect of the Estate’s release of lis pendens.
{16} In reaching its decision that the lis pendens remained in effect until the end of the lawsuit, notwithstanding the voluntary release by the Estate, the district court relied on Salas. In that ease, this Court stated that “regardless of the validity of the cancellation, the lis pendens established by the suit continues until expiration of the time for appeal or until final disposition of the case by the appellate court.” Salas,
{17} The question before this Court in Salas was whether a district court’s release of notice of lis pendens prior to the completion of the appeals process was valid. In Salas, the district court had entered judgment for the defendant and released a notice of lis pendens that had been recorded by the plaintiff. Id. at 614,
{18} In response to the plaintiffs second appeal, we held that a court may not order a release of notice of lis pendens “until expiration of the time for appeal or until final disposition of the case by the appellate court.” Id. at 615,
{19} In order to determine the effect of a party’s voluntary release of lis pendens, we look to the history of the lis pendens doctrine and the purpose of New Mexico’s lis pendens statutes. Prior to the Legislature’s adoption of the lis pendens statutes in the late eighteen hundreds, the general common-law doctrine of lis pendens applied. The essence of that doctrine was that the doctrine of lis pendens attached upon the filing of any action involving the title to real property, and subsequent purchasers, either with or without notice, took subject to the result of that litigation. Hammersley v. District Court,
{20} The common-law rule was harsh because “[i]t bound anyone who acquired an interest in property by the result of pending litigation involving that property even though the interest was acquired without knowledge of the litigation.” Id. at 96. The harshness of the common-law rule led most states to adopt statutes that required the recording of a notice of lis pendens in addition to the initiation of litigation in order to trigger the lis pendens doctrine. Powell, supra, § 82A.01[3] at 82A-7. Under these statutes, “[pjarties who do not take the minimal steps required ... to properly provide notice of pending litigation lose the protections they would otherwise have against subsequent good faith purchasers of the property.” Id. § 82A.01[2] at 82A-5.
{21} In New Mexico, the lis pendens statutes, Sections 38-1-14 to -15, replaced the common-law doctrine. These statutes provide the specific mechanism of a recorded notice of suit, which a plaintiff in an action affecting title to real property must use if he wishes to ensure that subsequent purchasers of that property have constructive notice of the pending claims. Section 38-1-14. The effect of the statute is that where a party chooses not to exercise his right to give notice to subsequent purchasers through a notice of lis pendens, either by not recording a notice during the litigation or by releasing the notice prior to the conclusion of the litigation, future purchasers are deemed to be without constructive notice of the pending claims involving the property.
{22} The Estate chose not to file a notice of lis pendens upon its initiation of the action or at any time during the first two years of the litigation. Similarly, after filing a notice of lis pendens, the Estate released that notice prior to the conclusion of the litigation. The result of the Estate’s actions was that, at the time the Kokoriehas purchased the Property, there was no active notice on record providing the Kokoriehas with constructive notice of the pending probate litigation involving title to the Property.
Effect of Grantors’ Voidable Title
{23} The Kokoriehas next argue that the district court erred when it concluded as a matter of law that the Kokoriehas were subject to the same failures of title to which Grantors were subject. Again, we agree that the district court erred.
{24} The district court found in the probate litigation that the deed from Mr. Keiner to Nephew was fraudulently obtained. Based on that determination, the district
{25} In State ex rel. State Tax Commission v. Garcia, 77 N.M. 70S,
{26} The Court in Garcia went on to state that there can be no cancellation of a voidable deed where there has been a sale to a good-faith bona fide purchaser. Id. at 709,
{27} In order to have been bona fide purchasers, the Kokorichas must have given value for the property, and they must have been without either constructive or actual notice of the pending litigation. The Kokorichas gave value for the property by paying Grantors $88,000 and, as we determined above, the Kokorichas did not have constructive notice of the litigation; however, we are unable to determine whether the Kokorichas had actual notice of the litigation.
{28} The Kokorichas were not at any time parties to the probate litigation, and they allege in their emergency motion to intervene, their complaint in intervention for declaratory judgment, and their verified petition for temporary restraining order and injunctive relief, that they had no actual notice of the litigation. However, the Estate’s answer to the complaint and the verified petition deny these allegations. Evidence was not presented on this issue at the hearing, and the district court, in its findings of fact and conclusions of law, made no finding as to whether the Kokorichas had actual notice of the litigation. Additionally, the district court did not make a definitive finding as to the Kokorichas’ status as bona fide purchasers, rather, the court merely noted that the Kokorichas claimed that status.
{29} Based on the record before us, we cannot determine whether the Kokorichas had actual notice of the litigation and, therefore, we cannot determine whether the Kokorichas were bona fide purchasers of the Property. Accordingly, we remand to the district court for a factual determination as
Other Arguments Made By the Estate in Its Answer Brief
{30} The Estate makes several arguments based on its premise that granting title to the Kokorichas is, in effect, granting the Kokorichas an award of specific performance against the Estate. The Estate cites no controlling or on-point authority for its argument, and we are not persuaded that the equitable remedy of specific performance is at issue in this ease.
{31} Specific performance is an equitable remedy under contract law. “Specific performance is the actual accomplishment of a contract by a party bound to fulfill it, and is a means of compelling a party to do precisely what he ought to have done without being coerced by a court.” McCoy v. Alsup,
CONCLUSION
{32} For the reasons set forth above, we reverse the district court’s ruling and remand the ease for further proceedings consistent with this opinion.
{33} IT IS SO ORDERED.