2019 New Mexico Statutes
Chapter 37 - Limitation of Actions; Abatement and Revivor
Article 1 - Limitations of Actions
Section 37-1-3 - Notes; written instruments; period of limitation; computation of period.
A. Actions founded upon any bond, promissory note, bill of exchange or other contract in writing shall be brought within six years.
If the payee of any bond, promissory note, bill of exchange or other contract in writing enters into any contract or agreement in writing to defer the payment thereof, or contracts or agrees not to assert any claim against the payor or against the assets of the payor until the happening of some contingency, the time during the period from the execution of the contract or agreement and the happening of the contingency shall not be included in computing the six-year period of limitation provided in this subsection.
B. Actions against any banking or financial organization subject to the provisions of the Uniform Unclaimed Property Act (1995) [Chapter 7, Article 8A NMSA 1978] founded upon a bill of exchange shall be brought within ten years.
C. Actions founded upon a traveler's check shall be brought within fifteen years.
History: Laws 1880, ch. 5, § 3; C.L. 1884, § 1862; C.L. 1897, § 2915; Code 1915, § 3348; C.S. 1929, § 83-103; Laws 1939, ch. 89, § 1; 1941 Comp., § 27-103; 1953 Comp., § 23-1-3; Laws 1975, ch. 70, § 1; 2015, ch. 91, § 1.ANNOTATIONS
Cross references. — For Public Securities Limitation of Action Act, see 6-14-4 NMSA 1978.
For statute of limitations in contracts for sale, see 55-2-725 NMSA 1978.
The 2015 amendment, effective June 19, 2015, removed the reference to "courts not of record" from the statute providing for limitations on actions based on certain private instruments; in the catchline, after "instruments", deleted "judgments of courts not of record"; in Subsection A, deleted "Those" and added "Actions", after the first occurrence of "contract in writing", deleted "or upon any judgment of any court not of record" and added "shall be brought", after the second occurrence of "contract in writing", deleted "or upon any judgment of any court not of record", after "execution of", deleted "such" and added "the", after "happening of", deleted "such" and added "the", after "period of limitation", deleted "above", and after "provided", deleted "in this subsection"; in Subsection B, deleted "Those" and added "Actions", after "Uniform", deleted "Disposition of", after "Act", added "1995", and after "bill of exchange", added "shall be brought"; and in Subsection C, deleted "Those" and added "Actions", and after "traveler's check", added "shall be brought".
I. GENERAL CONSIDERATION.
Statutes of limitations are procedural and law of forum governs matters of procedure. Sierra Life Ins. Co. v. First Nat'l Life Ins. Co., 1973-NMSC-079, 85 N.M. 409, 512 P.2d 1245.
Effect of dismissal without prejudice. — A dismissal without prejudice operates to leave the parties as if no action had been brought at all. Following such dismissal, the statute of limitations is deemed not to have been suspended during the period in which the suit was pending. King v. Lujan, 1982-NMSC-063, 98 N.M. 179, 646 P.2d 1243.
Filing of complaint tolls statute. — Filing of the complaint is commencement of the action which generally tolls the applicable statute of limitations. King v. Lujan, 1982-NMSC-063, 98 N.M. 179, 646 P.2d 1243.
Contract provisions control. — Provision of fire insurance policy that no suit should be sustainable thereunder unless commenced within 12 months next after loss prevailed over this section as to time when suit on policy must be commenced. Electric Gin Co. v. Firemen's Fund Ins. Co., 1935-NMSC-001, 39 N.M. 73, 39 P.2d 1024.
Insurance policy provision. — Provisions in insurance policies which limit the period within which suit may be brought after damage occurs are valid and enforceable if the time period is reasonable. A three-year limit is reasonable, even though the general limitations period for actions on a contract is six years. Willey v. United Mercantile Life Ins. Co., 1999-NMCA-137, 128 N.M. 98, 990 P.2d 211.
Discount agreement. — An agreement providing for scheduled discounts dependent upon future purchases whose dominant objective was to provide a discount schedule, if sales were made, is not a contract of sale. The limitation of this section controls rather than Section 55-2-725 NMSA 1978. Data Gen. Corp. v. Communications Diversified, Inc., 1986-NMSC-088, 105 N.M. 59, 728 P.2d 469.
Extension by guarantor. — Where contract of guaranty appearing on note involved in foreclosure suit provided that, in consideration of extension of time of payment of note, payment of note on demand at any time six years from stated date was guaranteed by the guarantor, such contract of guaranty extended time of payment six years, and suit by payee a few months after execution of contract of guaranty was not barred by limitation. Cullender v. Levers, 1934-NMSC-061, 38 N.M. 436, 34 P.2d 1089.
Effect of verbal promise. — Verbal promise to pay an old debt in monthly installments in consideration for extension of time for paying balance due was not a new contract superseding original loan contracts and did not toll running of the statute of limitations. Petranovich v. Frkovich, 1945-NMSC-037, 49 N.M. 365, 164 P.2d 386.
Written deferral of payments. — Where an agreement is written into promissory notes that payment is to be deferred for 60 days after demand, the period between their dates and demand is not to be counted in computing the six-year period of limitation. Schoonover v. Caudill, 1959-NMSC-030, 65 N.M. 335, 337 P.2d 402.
Effect of nonclaim statute. — The nonclaim statute is not a substitute for the general statute of limitations as to claims against a decedent's estate and the holder of a promissory note cannot rely on nonclaim statute where general statute had run but not the statute of nonclaim. In re Matson's Estate, 1946-NMSC-028, 50 N.M. 155, 173 P.2d 484.
Statute not tolled by performance. — A contract vendee's claim of title, where the vendee has fully performed and whether or not he or she is in possession, is not cut off by the running of a statute of limitations. Garcia v. Garcia, 1991-NMSC-023, 111 N.M. 581, 808 P.2d 31.
Statute not tolled by possession. — Possession of mortgaged land by mortgagee with consent of mortgagor does not toll the statute of limitations; the court will not create an exception not provided by law. Buss v. Kemp Lumber Co., 1918-NMSC-005, 23 N.M. 567, 170 P. 54.
Equitable estoppel as tolling statute. — The party asserting estoppel must sustain the burden of showing not only that he failed to discover the cause of action prior to the running of the statute of limitations, but also that he exercised due diligence and that some affirmative act of fraudulent concealment frustrated discovery notwithstanding such diligence. The district court in this case abused its discretion in applying the doctrine of equitable estoppel to toll the six-year statute of limitations on the breach of contract claim. The grounds upon which the plaintiffs based their claims were apparent to them many years prior to filing the 1982 complaint, and they could have commenced the action within the statutory period. Continental Potash, Inc. v. Freeport-McMoran, Inc., 1993-NMSC-039, 115 N.M. 690, 858 P.2d 66, cert. denied, 510 U.S. 1116, 114 S. Ct. 1064, 127 L. Ed. 2d 383 (1994).
In an action for breach of contract, proof that the defendant intended to deceive or delay the plaintiff or to dissuade him from pursuing legal action was not required for the plaintiff to claim equitable estoppel. Tiberi v. CIGNA Corp., 89 F.3d 1423 (10th Cir. 1996).
In an action for breach of contract, the defendant's claim that it made no representations to the plaintiff upon which he could reasonably rely could not be used to prevent the application of equitable estoppel. Tiberi v. Cigna Corp., 89 F.3d 1423 (10th Cir. 1996).
Nor pending administrator's appointment. — There is no tolling of the six-year statute of limitations during the time period in which the decedent's widow has preferential right to apply for appointment as administrator. In re Matson's Estate, 1946-NMSC-028, 50 N.M. 155, 173 P.2d 484.
Defendants with foreign residence. — This section and 37-1-9 NMSA 1978 apply to defendants residing in another country at time of and since executing note sued on. Bunton v. Abernathy, 1937-NMSC-084, 41 N.M. 684, 73 P.2d 810.
Extinguishment of lien. — Lien created by the statute authorizing the recordation of a transcript of the docket thereof is a right as distinguished from a remedy, and if the remedy of foreclosure of the judgment lien prayed for in a counterclaim is barred, the lien has been extinguished. Pugh v. Heating & Plumbing Fin. Corp., 1945-NMSC-031, 49 N.M. 234, 161 P.2d 714.
Unless a governmental entity directly contracts for a shorter time-to-sue provision with either the contractor or the surety, a shorter time-to-sue provision contained in a performance bond is unenforceable. City of Santa Fe v. Travelers Cas. & Sur. Co., 2010-NMSC-010, 147 N.M. 699, 228 P.3d 483.
Enforceability of time-to-sue provisions in performance bond. — Where a municipality contracted with a contractor to repair a tank; the contract did not contain a time-to-sue provision; the contractor obtained a performance bond from the surety pursuant to Section 13-4-18 NMSA 1978; the performance bond contained a two year time-to-sue provision; the municipality declared the contractor in default and demanded performance from the surety; and the municipality sued the surety more than two years after the municipality declared the default, the two year time-to-sue provision in the performance bond was unenforceable and the six year statute of limitation applied. City of Santa Fe v. Travelers Cas. & Sur. Co., 2010-NMSC-010, 147 N.M. 699, 228 P.3d 483.
"Mortgage" is a contract in writing and it falls within the six-year statute. Griffith v. Humble, 1942-NMSC-006, 46 N.M. 113, 122 P.2d 134.
Land purchase agreement. — Claim arising out of written agreement by defendant purchasers to pay an additional amount beyond the agreed purchase price for sale of land within one and one-half years was barred where the action was brought 13 years after execution of the contract. Romero v. Sanchez, 1974-NMSC-013, 86 N.M. 55, 519 P.2d 291.
Interest coupons. — An action to recover on interest coupons is an action on written instruments, and the six year, not the four year, limitation applies. Coler v. Board of Cnty. Comm'rs, 1891-NMSC-024, 6 N.M. 88, 27 P. 619.
City warrants. — It is not error for the court to enter judgment against plaintiff, after plea of limitations, on petition to fund city warrants, where 10-year delay is not explained. Miller v. City of Socorro, 1898-NMSC-019, 9 N.M. 416, 54 P. 756; Cross v. Board of Cnty. Comm'rs, 1898-NMSC-018, 9 N.M. 410, 54 P. 880.
Freight charges. — The limitations for transportation charges on freight moving intrastate in New Mexico is that provided for written contracts, to wit, six years. 1956 Op. Att'y Gen. No. 56-6417.
Section does not apply to action to recover on deficiency on motor vehicle installment contract. — Article 2 of the Uniform Commercial Code governs an action to recover a deficiency after a default on a motor vehicle installment contract; thus, the statute of limitations is four years. First Nat'l Bank v. Chase, 1994-NMSC-127, 118 N.M. 783, 887 P.2d 1250.
Failure to service debt. — Action for breach of contract, brought more than six years after defendant failed to bring certain foreclosure action, was barred where plaintiffs had had previous notice of defendant's breach. First W. Sav. & Loan Ass'n v. Home Sav. & Loan Ass'n, 1972-NMCA-083, 84 N.M. 72, 499 P.2d 694.
Failure to pay wages. — In an action to exact a penalty from an employer for failure to pay wages, the time limitations of 50-4-4 NMSA 1978 control over this section. Spikes v. Mittry Constr. Co., 295 F.2d 207 (10th Cir. 1961).
Published offer of reward. — An offer by publication of reward for the discovery of the parties concerned in a murder, while it becomes a contract by performance of the thing for which the reward was offered, was not a "written contract" within this section. Cunningham v. Fiske, 1906-NMSC-005, 13 N.M. 331, 83 P. 789.
County bonds. — The six-year statute of limitations did not apply to county bonds maturing in 1881, where taxes were levied for their payment, and the board of county commissioners recognized the interest due as a continuing liability before the six years could attach by authorizing a loan to meet it at maturity. Coler v. Board of Cnty. Comm'rs, 1891-NMSC-024, 6 N.M. 88, 27 P. 619.
Six-year limitation period governs action on insurance policy. — In an action brought on an insurance policy, the six-year limitation period of this section, pertaining to actions brought on a written contract, governs the action. Sandoval v. Valdez, 1978-NMCA-016, 91 N.M. 705, 580 P.2d 131, cert. denied, 91 N.M. 610, 577 P.2d 1256 (specially concurring opinion).
Claim for breach of contract to procure insurance. — Where there was no written contract to procure insurance between surplus lines broker and businessman, claim for breach of contract to procure insurance was governed by the four-year statute of limitations for unwritten contracts, and the statute of limitations for claims based upon written contracts does not apply to this claim. Nance v. L.J. Dolloff Assocs., Inc., 2006-NMCA-012, 138 N.M. 851, 126 P.3d 1215.
Because a binder is a contract of insurance and not a contract for insurance, even if there is a binder, and thus a written contract, it is not a written contract upon which can be based a claim for breach of contract. Nance v. L.J. Dolloff Assocs., Inc., 2006-NMCA-012, 138 N.M. 851, 126 P.3d 1215.
Where uninsured motorist clause in policy. — An insurer under an uninsured motorist clause in a policy is governed by the contract statute of limitations in this section. To allow an insurer to lessen the period of time to bring an action on an insurance policy from six years to one year by means of a contract provision would thwart the purpose of the insured motorist statute. Sandoval v. Valdez, 1978-NMCA-016, 91 N.M. 705, 580 P.2d 131, cert. denied, 91 N.M. 610, 577 P.2d 1256 (specially concurring opinion) Ellis v. Cigna Prop. & Cas. Cos., 1999-NMSC-034, 128 N.M. 54, 989 P.2d 429;.
Subrogated insurer action against uninsured motorist. — Since an insured has a six year limitation period for suit against the insurance carrier under an uninsured motorist claim, the subrogated insurance carrier is bound by the same limitation period as the insured would be if the insured were bringing suit against the uninsured motorist. Liberty Mut. Ins. Co. v. Warren, 1995-NMCA-009, 119 N.M. 429, 891 P.2d 570.
III. ACCRUAL OF CAUSE OF ACTION.
Accrual at time of breach. — A cause of action for a breach of contract accrues at the time of the breach. Jeffers v. Butler, 762 F. Supp. 308 (D.N.M. 1990), aff'd, 931 F.2d 62 (10th Cir. 1991).
Accrual at time of breach. — Where the parties were in negotiations over the value of an underinsured motorist claim, in compliance with the insurance contract, during the six-year limitations period for bringing contract actions, as long as negotiations in compliance with the insurance contract were ongoing, there was no breach of contract and the six-year limitations period did not begin to run on the breach of contract claim. Brooks v. State Farm Ins. Co., 2007-NMCA-033, 141 N.M. 522, 154 P.3d 697.
Accrual from injury, not wrongful act. — A cause of action accrues, for the purpose of the statutes of limitations, from the injury rather than the wrongful act. Zamora v. Prematic Serv. Corp., 936 F.2d 1121 (10th Cir. 1991).
Cashier's check. — Statute of limitations on cashier's check begins running on date issued not on the date checks were presented for payment. First Nat'l Bank v. Allison, 1973-NMSC-089, 85 N.M. 511, 514 P.2d 30.
Note payable on demand starts statute running from its date. Schoonover v. Caudill, 1959-NMSC-030, 65 N.M. 335, 337 P.2d 402.
Promissory note. — The statute of limitations commences to run against a cause of action on a note upon default in payment of interest, where the note provides that upon default in interest the principal sum becomes due and collectible. Heisel v. York, 1942-NMSC-009, 46 N.M. 210, 125 P.2d 717; Buss v. Kemp Lumber Co., 1918-NMSC-005, 23 N.M. 567, 170 P. 54.
Under contract obligations payable by installments, the statute begins to run only with respect to each installment when due. The statute begins to run with respect to the whole indebtedness only from the date of an exercise of the option to declare the whole indebtedness due. Welty v. Western Bank, 1987-NMSC-066, 106 N.M. 126, 740 P.2d 120.
When exercising an option in an installment contract to declare the whole indebtedness due. — Where plaintiff bank, in February 2016, brought a second foreclosure action against homeowners who defaulted on a mortgage loan in October 2008, following dismissal of its first foreclosure action, which was filed in October 2009 and where bank exercised an option under the note to accelerate and declare immediately payable and due the full amount of the principal and all interest still owed under the note, and where homeowners filed for bankruptcy three times between 2011 and 2012, the third of which resulted in a discharge order, the district court erred in dismissing bank's entire foreclosure claim as barred by the six-year statute of limitations, because in the context of an installment contract, like the note in this case, the statute would have begun to run with respect to the whole indebtedness only from the date of an exercise of the option to declare the whole indebtedness due, and pursuant to 37-1-12 NMSA 1978, the statute of limitations for its claim for the accelerated balance as of October 2009 was tolled during the periods in which homeowners' three bankruptcies were pending in federal bankruptcy court as a result of automatic stays. LSF9 Master Participation Trust v. Sanchez, 2019-NMCA-055.
Contract of indemnity. — Where a contract of indemnity contains a promise to make specified payments, an immediate right of action accrues upon the failure of the indemnitor to perform, regardless of whether actual damages have been sustained. Zamora v. Prematic Serv. Corp., 936 F.2d 1121 (10th Cir. 1991).
Certificates of deposit. — The statute of limitations does not begin to run against a certificate of deposit, until it has been presented to the bank with a demand of payment and a refusal. Bank of Commerce v. Harrison, 1901-NMSC-014, 11 N.M. 50, 66 P. 460.
The statute of limitations begins to run against the depositor of certificate of deposit at the time when demand for payment is made. Luna v. Montoya, 1919-NMSC-054, 25 N.M. 430, 184 P. 533).
Guaranty contract. — Statute of limitations does not run against a guarantor until default of his principal. Cullender v. Levers, 1934-NMSC-061, 38 N.M. 436, 34 P.2d 1089.
County warrants. — Where a county has issued a warrant for feeding prisoners, drawn upon the treasurer, and one year later the holder presented it to the commissioners to exchange for bonds, and it was endorsed "presented but not refunded," and signed by the clerk, this is not a presentment for and refusal of payment; the holder of the warrant may not then claim that the right of action has not accrued until suit is begun nine years after the drawing of the warrant. Cross v. Board of Cnty. Comm'rs, 1898-NMSC-018, 9 N.M. 410, 54 P. 880.
Accounting under trust. — Any cause of action under a letter allegedly creating an express trust in certain motel property in favor of plaintiff arose at the time of the sale or sales of the property, and at that time, if not before, any right plaintiff might have had to an accounting came into existence; since there was no evidence of fraudulent concealment by defendants, the six-year statute of limitations barred plaintiff's action. Fidel v. Fidel, 1975-NMSC-008, 87 N.M. 283, 532 P.2d 579.
Reformation of deeds. — Where two brothers operated a farm as partners, but property purchased in 1950 and 1957 was recorded in only one brother's name, the limitations period to reform the deeds did not begin to run until the brother in whose name the property was held repudiated the partnership agreement. Bassett v. Bassett, 1990-NMSC-070, 110 N.M. 559, 798 P.2d 160.
Broker's commission. — Where contract for payment of real estate broker's commission was entered into more than six years before filing of suit, but commission, if any, would not become due until title to the acreage was obtained by defendant, time elapsing between the making of the contract and the happening of the condition when performance became due was not to be counted. Harp v. Gourley, 1961-NMSC-026, 68 N.M. 162, 359 P.2d 942.
Suspension during period where no action possible. — A real estate contract provided that, should the purchaser continue in default for 30 days after written demand for payment, the seller could terminate the contract. Since no action on the contract was possible until 30 days after a notice of default, the statute of limitations was suspended for 30 days following the notice. Welty v. Western Bank, 1987-NMSC-066, 106 N.M. 126, 740 P.2d 120.
Demand guaranty. — The statute of limitations on a demand guaranty begins to run when demand is made upon the guarantor. Western Bank v. Franklin Dev. Corp., 1991-NMSC-009, 111 N.M. 259, 804 P.2d 1078.
Uninsured motorist coverage. — The limitations period on the claim of an insured against his uninsured motorist carrier for injuries sustained while occupying an automobile not owned by him does not begin to run until his claim against the automobile's insurer is finally adjudicated. Ellis v. Cigna Prop. & Cas. Cos., 1999-NMSC-034, 128 N.M. 54, 989 P.2d 429.
Written account. — If a written contract is an account, the four-year limitation of 37-1-4 NMSA 1978 applies; hence, despite written agreements by hospital patients to be responsible for payment of their accounts, these accounts would still be subject to a four-year limitation. 1970 Op. Att'y Gen. No. 70-25.
Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For comment, "Commercial Law - Uniform Commercial Code - Sale of Goods," 8 Nat. Resources J. 176 (1968).
For comment, "Negotiable Instruments - A Cause of Action on a Cashier's Check Accrues from the Date of Issuance," see 4 N.M.L. Rev. 253 (1974).
For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982).
For annual survey of commercial law in New Mexico, see 18 N.M.L. Rev. 313 (1988).
For annual survey of New Mexico law of civil procedure, 19 N.M.L. Rev. 627 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 Am. Jur. 2d Bills and Notes §§ 1035 to 1056; 51 Am. Jur. 2d Limitations of Actions §§ 92 to 99, 126 to 134.
When statute of limitations begins to run in favor of drawer of check, 4 A.L.R. 881.
Statute of limitations as applied to certificate of deposit, 23 A.L.R. 7, 128 A.L.R. 157.
Availability of statute, and time when it begins to run, where one assumes and agrees to pay another's debt, 31 A.L.R. 1056.
Acceleration provision in note or mortgage as affecting the running of the statute of limitations, 34 A.L.R. 897, 161 A.L.R. 1211.
Action by or in behalf of creditors of a corporation on unpaid stock or subscription, 35 A.L.R. 832.
When statute of limitations begins to run against action to recover interest, 36 A.L.R. 1085.
Purchase subject to mortgage as removing or interrupting defense of statute of limitations as against mortgage, 48 A.L.R. 1320.
Grantee's assumption of mortgage indebtedness by deed as simple contract or specialty within statute of limitations, 51 A.L.R. 981.
When statute of limitations begins to run against warrant of municipal or quasi-municipal corporation, 56 A.L.R. 830.
Posting of notice or other steps preliminary to nonjudicial foreclosure of mortgage as tolling statute of limitations as against grantee of mortgaged premises, 122 A.L.R. 938.
Statute of limitations as affecting suit to enforce mortgage or lien securing debt payable in installments, 153 A.L.R. 785.
When statute of limitations begins to run against action on written contract which comtemplates on actual demand, 159 A.L.R. 1021.
Acceleration provision as affecting running of limitations, 161 A.L.R. 1211.
Contract in writing within statute of limitations, what constitutes, 3 A.L.R.2d 809.
What period of limitations governs in an action against a public officer and a surety on his official bond, 18 A.L.R.2d 1176.
Action by passenger against carrier for personal injuries as based on contract or on tort, with respect to application of statutes of limitations, 20 A.L.R.2d 331.
Entry or indorsement 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.
When statute of limitations begins to run against note payable on demand, 71 A.L.R.2d 284.
Validity of contractual time period, shorter than statute of limitations, for bringing action, 6 A.L.R.3d 1197.
When does statute of limitations begin to run upon an action by subrogated insurer against third-party tort-feasor, 91 A.L.R.3d 844.
Statute of limitations as bar to arbitration under agreement, 94 A.L.R.3d 533.
Limitation of action against insurer for breach of contract to defend, 96 A.L.R.3d 1193.
Debtor's restrictive language accompanying part payment as preventing interruption of statute of limitations, 10 A.L.R.4th 932.
Statutes of limitation: actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability, 12 A.L.R.4th 866.
When statute of limitations commerces to run on automobile no-fault insurance personal injury claim, 36 A.L.R.4th 357.
When statute of limitations commences to run on right of partnership accounting, 44 A.L.R.4th 678.
When statute of limitations commences to run as to cause of action for wrongful discharge, 19 A.L.R.5th 439.
Modern status of the application of "discovery rule" to postpone running of limitations against actions relating to breach of building and construction contracts, 33 A.L.R.5th 1.
Insurer's waiver of defense of statute of limitations, 104 A.L.R.5th 331.
Limitations of actions applicable to action by trustees of employee benefit plan to enforce delinquent employer contributions under ERISA (29 USCS § 1132(a)), 90 A.L.R. Fed. 374.
17A C.J.S. Contracts § 531; 54 C.J.S. Limitations of Actions §§ 56, 59, 63, 149 to 152.