See also, 51 Am.Jur.2d, Limitation of Actions, ยง 191. The rationale that the statute of limitations is not applicable is expressed in Curtis v. Curtis, 56 N.M. 695, 248 P.2d 683 (1952): "`It is the policy of the Law to prevent litigation between husband and wife, not to promote it as would be the case if the wife had to sue her husband to avoid limitations and laches.'"
Indeed, the subsequent decisions applying Chavez negate the notion that it was not retroactive. See Ortiz v. Gonzales, 64 N.M. 445, 329 P.2d 1027; Curtis v. Curtis, 56 N.M. 695, 248 P.2d 683. Historically the decisional law of New Mexico strongly indicates that an overruling decision has retroactive as well as prospective effect, and for that reason has overruled decisions involving rules of property only for the most compelling reasons.
โ Ortiz v. Gonzales, 329 P.2d 1027, 1031 (1958). See also Curtis v. Curtis, 248 P.2d 683 (1952), in which the court held an agreement, executed in 1936 and ratified in 1941, to transmute the character of community property void as induced by fraud. This case was decided 4 months after the Chavez case.
A showing of unconscionability may render an otherwise valid contract voidable, revocable, and unenforceable, but this does not mean that the contract was void from its inception. See Cordova, 2009โNMSCโ021, ยถ 21, 146 N.M. 256, 208 P.3d 901 (explaining that unconscionability may render a contract unenforceable); Fiser, 2008โNMSCโ046, ยถ 23, 144 N.M. 464, 188 P.3d 1215 (noting that unconscionability is grounds for the revocation of any contract); cf. Curtis v. Curtis, 56 N.M. 695, 702โ05, 248 P.2d 683, 688โ89 (1952) (discussing the circumstances under which fraud will render a contract void from the beginning, as opposed to the circumstances under which fraud will render a contract voidable upon the successful assertion of fraud as a defense). Thus, we conclude that the burden to prove the formation of a valid contract does not include the burden to prove the absence of unconscionability.
If the parties present conflicting evidence, the court of equity will consider the circumstances of the case in arriving at a determination. See Curtis v. Curtis, 56 N.M. 695, 248 P.2d 683 (1952). In the case at bar, Husband has shown that the parties were married and that Wife benefited.
Beals v. Ares, 25 N.M. 459, 185 P. 780. See, also, Curtis v. Curtis, 56 N.M. 695, 248 P.2d 683. The husband was the moving party; the appellant was unable to read or write English; she had no independent counsel; and the husband threatened to kill her if she ever came upon the premises.
'" and in Curtis v. Curtis, 1952, 56 N.M. 695, 248 P.2d 683: "`It is the policy of the Law to prevent litigation between husband and wife, not to promote it as would be the case if the wife had to sue her husband to avoid limitations and laches.'"
However, the cases relied upon by appellees are clearly distinguishable, or arrive at a result which we decline to follow. We do take note, however, that Curtis v. Curtis, 1952, 56 N.M. 695, 248 P.2d 683, related to a property settlement between husband and wife in which the confidential relationship of the parties was of paramount importance, thereby resulting in the determination that the agreement was void ab initio. The case before us concerns different facts, circumstances and relationships under the Uniform Commercial Code; thus Curtis is not analogous.
The ruling of the court is assigned as error. True, we held the marriage settlement between I.N. Curtis and the appellant void, Curtis v. Curtis, 56 N.M. 695, 248 P.2d 683, but that is unimportant here as our Recording Act, Ch. 10, L. 1886-1887, ยงยง 71-2-1, 71-2-2, 1953 Comp., is controlling. Appellees were entitled to rely upon the record.
In view of the numerous quotations from the opinion of Chief Justice Brice in Primus v. Clark, supra, with the writer noted as concurring, it is pertinent to observe before closing that what is there said does not have the concurrence of a majority of the justices, even though the three remaining justices did concur in the result. This fact is noted in the subsequent cases of Newton v. Wilson, 53 N.M. 480, 211 P.2d 776, and Curtis v. Curtis, 56 N.M. 695, 248 P.2d 683. Hence, it is scarcely accurate to choose given passages from that opinion and characterize them as reflecting the views of the court. Maybe they do, but one can not say so with assurance. What we do know is that in Primus v. Clark, supra, there was unanimous concurrence in remanding the cause for the trial court to determine a vital issue for such effect as it might be adjudged to have on plaintiff's rights.