2018 New Mexico Statutes
Chapter 42 - Actions and Proceedings Relating to Property
Article 5 - Partition
Section 42-5-7 - Finding that property cannot be partitioned; appraisal; report of commissioners; contest of report; hearing; sale.

A. Should the commissioners be of the opinion that the real estate is so circumstanced that a partition thereof cannot be made without manifest prejudice to the owners or proprietors of the same, they shall proceed to appraise the real estate at its cash value at the time, deducting the amount of all liens and encumbrances against such real estate, and the commissioners shall so report to the court and file with their said report a written appraisal. Any party to the action who shall have been adjudged by the court to have an interest in the real estate appraised, may within ten days from the date of filing of said report and appraisal contest said report or said appraisal, and for such purpose shall file in the cause an affidavit setting forth wherein said report, appraisal or both is incorrect; provided, that the affidavit shall put in issue only the value of the real estate as shown by the appraisal and the question as to whether or not the real estate is so circumstanced that a partition hereof cannot be had without manifest prejudice to the owners or proprietors thereof, and the court shall hear proof touching the matters set forth in the affidavit, and if the report or the appraisal shall be found by the court to be incorrect, the court shall determine the value of the real estate and whether or not the real estate can be divided without manifest prejudice to the owners or proprietors thereof. If the report or appraisal shall be found by the court to be correct the same shall be confirmed by the court. In the event the report of the commissioners shall not be contested within the time above provided, or in the event the report of the commissioners shall be confirmed by the court, the court, in its discretion, may order the premises to be sold at public or private sale, providing in the order for reasonable public notice of such sale on such terms and conditions as it may prescribe; provided, that if the court does not order such sale to be made for cash, a cash payment of not less than one-quarter of the purchase money shall be required by the court, to be made to the person or persons, who shall be appointed by the court to make such sale, by the purchaser of such land at the time of such sale, the balance of such purchase price to be paid and secured in such manner as the court shall direct. If sale is made at private sale, same shall be made for not less than its full value as determined as aforesaid. If the value determined as aforesaid shall be less than ten thousand dollars ($10,000) the court shall authorize sale of the property at a public sale to the highest and best bidder thereat. If such value determined as aforesaid shall be ten thousand dollars ($10,000) or more, public sale of said property shall not be made for less than two-thirds of its value as so determined and fixed. Any sale hereunder shall be subject to any and all liens deducted as provided herein in making the appraisal.

B. The person or persons who shall be appointed by the court to make sale of said real estate shall make and execute good and sufficient conveyance or conveyances to the purchaser or purchasers thereof which shall operate as an effectual bar both in law and equity against such owners and proprietors, parties to the proceedings, and all persons claiming [under] them; and the person or persons making such sale shall report their proceedings to the court and shall pay over the moneys arising therefrom to the parties entitled to receive the same under the direction of the court.

History: C.L. 1897, § 2685 (272), added by Laws 1907, ch. 107, § 1 (272); Code 1915, § 4385; C.S. 1929, § 105-1907; Laws 1939, ch. 170, § 1; 1941 Comp., § 25-1207; 1953 Comp., § 22-13-7; Laws 1959, ch. 164, § 1.

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

Report couched in language from statute, proper. — Report of commissioners in words of statute finding "that the said lots are so circumstanced that a partition thereof cannot be made without manifest prejudice to the owners of the same" is sufficient. Field v. Hudson, 1918-NMSC-008, 25 N.M. 7, 176 P. 73.

Where prior report of commissioners for partition was invalidated under a decision of the supreme court, and the lower court properly referred the matter to new commissioners, it was proper for the court to order a sale of the land on the report of the new commissioners. Field v. Hudson, 1918-NMSC-008, 25 N.M. 7, 176 P. 73.

Sale of tenancy in common. — A sale of a tenancy in common can be had only when commissioners report to the court that a partition cannot be made without manifest prejudice to the owners. Marquez v. Marquez, 1965-NMSC-016, 74 N.M. 795, 399 P.2d 282.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 59A Am. Jur. 2d Partition §§ 4 to 8, 39 to 60, 62, 118 to 132.

Trust arising from parol agreement to bid in property sold at partition sale for person having an interest therein, 42 A.L.R. 109, 135 A.L.R. 232, 27 A.L.R.2d 1285.

Interference by court with decision of commissioners in partition suit, 46 A.L.R. 348.

Grounds, other than defects as to title of land, resale or irregularity in sale, for relief of successful bidder from obligation to comply with bid, 63 A.L.R. 974.

Caveat emptor, doctrine of, as applied to purchaser at partition sale, 68 A.L.R. 668.

Champerty rule as applicable to partition sale or to conveyance by person claiming under such sale, 71 A.L.R. 596.

Retainer of indebtedness of heir, legatee, or distributee from proceeds of partition sale, 75 A.L.R. 884, 110 A.L.R. 1384, 164 A.L.R. 717.

Partition of partnership in real property, 77 A.L.R. 300.

Partition as affecting pre-existing mortgage or other lien on undivided interest, 93 A.L.R. 1267.

Commissioner or referee, power of court in partition proceedings to direct sale of property without aid of, or contrary to recommendation of, 95 A.L.R. 1330.

Life tenant's interest in fund realized from partition sale of property, commutation of, into estimated present value, 102 A.L.R. 969.

Legacy charged upon land devised, right of legatee to enforce payment of, as against purchaser at partition sale, 116 A.L.R. 35, 134 A.L.R. 361.

Mortgage or other lien upon premises, cotenant's right to allowance in partition in respect of amount paid to discharge, as affected by statute of limitations or laches, 117 A.L.R. 1442.

Effect of receipt of higher bid before confirmation upon confirmation of judicial sale, 152 A.L.R. 530.

Estoppel of or waiver by parties or participants regardingirregularities or defects in execution or judicial sale, 2 A.L.R.2d 6.

Rights of surviving spouse and children in proceeds of partition sale of homestead in decedent's estate, 6 A.L.R.2d 515.

Maintainability of partition action where United States or state owns an undivided interest in property, 59 A.L.R.2d 937.

Rights and remedies of one purchasing at partition sale where there was misrepresentation or mistake as to acreage or location of boundaries of tract sold, 69 A.L.R.2d 254.

68 C.J.S. Partition §§ 11, 45, 123 to 150, 152, 156 to 164, 172 to 222.