2019 New Mexico Statutes
Chapter 37 - Limitation of Actions; Abatement and Revivor
Article 1 - Limitations of Actions
Section 37-1-20 - [No sale upon mortgages, etc., when action barred.]
No lands, tenements, hereditaments, goods or chattels shall be sold under any power of sale contained in any mortgage, deed of trust or other written instrument of like effect, where an action or suit upon the indebtedness secured thereby is barred by the provisions of Chapter 68, New Mexico Code of 1915.
History: Laws 1927, ch. 10, § 1; C.S. 1929, § 83-120; 1941 Comp., § 27-119; 1953 Comp., § 23-1-20.ANNOTATIONS
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes. — Chapter 68 of the 1915 Code is compiled as 37-1-1 to 37-1-4, 37-1-6 to 37-1-19, 37-1-21, 37-1-22, 37-1-25, 37-1-26 NMSA 1978.
Cross references. — For prohibition against selling real property under power of sale, see 48-7-7 NMSA 1978.
This section is not unconstitutional impairment of obligations of contract as applicable to one who holds a past due real estate mortgage as security for indebtedness on which action is barred approximately a year and nine months after passage of the section. Davis v. Savage, 1946-NMSC-011, 50 N.M. 30, 168 P.2d 851.
Sections not conflicting. — Section 48-7-7 NMSA 1978, prohibiting the selling of real estate under power of sale, does not conflict with provision of this section limiting time within which chattels, goods and land may be sold under power of sale in mortgage. Davis v. Savage, 1946-NMSC-011, 50 N.M. 30, 168 P.2d 851.
Time for enforcing mortgage lien not extended. — Where 1929 act (48-7-7 NMSA 1978, prohibiting the selling of realty under power of sale) intervened before lien resulting from a 1921 mortgage had been enforced and a "renewal" mortgage was executed, time for enforcing the 1921 mortgage lien was not extended because remedy by foreclosure under power of sale had been withdrawn by the legislature which allowed a reasonable time for enforcing the remedy before it took effect. Davis v. Savage, 1946-NMSC-011, 50 N.M. 30, 168 P.2d 851.
Effect of new note. — A new note promising to pay one year later the face amount of earlier note barred by limitations but not interest accrued thereon represented a new contract insofar as effect of intervening statutes limiting the time for exercising power of sale arising under real estate mortgage given to secure the old note. Davis v. Savage, 1946-NMSC-011, 50 N.M. 30, 168 P.2d 851.
Mortgagee in possession. — Though foreclosure of mortgage is barred by limitations, a mortgagee in possession under contract with mortgagors did not lose the status of a mortgagee in possession by ineffective attempt to sell the land under power of sale, but was entitled to retain possession until mortgage debt was paid. Davis v. Savage, 1946-NMSC-011, 50 N.M. 30, 168 P.2d 851.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 55 Am. Jur. 2d Mortgages § 679 et seq.
Entry or endorsement by creditor on note, bond or other obligation as evidence of part payment which will toll the statute of limitations, 23 A.L.R.2d 1331.
Estoppel to rely on statute of limitations, 24 A.L.R.2d 1413.