The commissioner shall have power to cancel any lease, contract or other instrument executed by him which shall have been obtained by fraud or executed through mistake or without authority of law. In such case he shall serve upon the party or parties in interest notice, as prescribed by Section 19-7-50 NMSA 1978 to show cause before him, upon a date to be fixed in such notice, why such instrument shall not be canceled in accordance with the rules and regulations of the state land office.

From the decision rendered by the commissioner upon such hearing an appeal shall lie as provided by this chapter in cases of contest.

History: Laws 1912, ch. 82, § 75; Code 1915, § 5253; C.S. 1929, § 132-187; 1941 Comp., § 8-808; 1953 Comp., § 7-8-8.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Compiler's notes. — The words "this chapter" apparently refer to ch. 102 of the 1915 Code, §§ 5178 to 5290, the presently effective sections of which are compiled herein as 19-1-1, 19-1-2, 19-1-4 to 19-1-6, 19-1-9 to 19-1-16, 19-1-21, 19-2-1, 19-5-3 to 19-5-10, 19-6-1 to 19-6-7, 19-7-1, 19-7-7, 19-7-8, 19-7-11, 19-7-13, 19-7-19 to 19-7-22, 19-7-25, 19-7-27 to 19-7-30, 19-7-34, 19-7-36, 19-7-50 to 19-7-53, 19-7-57, 19-7-58, 19-7-64 to 19-7-67, 19-8-1 to 19-8-3, 19-8-10, 19-8-12, 19-8-13, 19-9-1 to 19-9-8, 19-11-10 NMSA 1978.

Cross references. — For limitation of actions brought on ground of fraud, see 37-1-4 NMSA 1978.

For accrual of cause of action based on fraud or mistake, see 37-1-7 NMSA 1978.

Contract not cancelable. — Under the constitution and statutes, the state land commissioner has the power to alienate certain public lands which are held in trust for public schools within the limits and under the terms so prescribed. However, after having sold public lands on which a railroad as a trespasser had built a diversion dam and water pipe, such commissioner could not cancel the contract of sale of those lands covered by such improvements, despite the fact that the contract resulted from mutual mistake by him and the purchasers, who were not aware of such improvements, that the improvements were of no value to purchaser, who was repaid no part of the consideration, and the contract was not divisible. Application of Dasburg, 1941-NMSC-024, 45 N.M. 184, 113 P.2d 569.

Standing to sue. — In a contest proceeding involving the right to lease certain state lands, lessee's heirs had no right to put in issue defendant's fraud in acquiring lease, where land was leased to defendant on refusal of administrator of lessee to renew lease. Hart v. Walker, 1935-NMSC-089, 40 N.M. 1, 52 P.2d 123.

Standing in contest proceeding. — A railroad, which was not a party to a case of the state before its state land commissioner, which was initiated by an order to show cause why a contract to purchase realty on which such railroad as a trespasser had made improvements should not be canceled, was not in position to urge a judgment in the supreme court directing cancellation of the contract under this section or Section 19-7-67 NMSA 1978. Application of Dasburg, 1941-NMSC-024, 45 N.M. 184, 113 P.2d 569, explained in Ellison v. Ellison, 1944-NMSC-012, 48 N.M. 80, 146 P.2d 173.