2019 New Mexico Statutes
Chapter 44 - Miscellaneous Civil Law Matters
Article 5 - Gambling Debts and Losses
Section 44-5-4 - Judgments, conveyances and contracts founded on gambling loss void; suit to declare void; parties.

All judgments, securities, bonds, bills, notes or conveyances, when the consideration is money or property won at gambling, or at any game or gambling device, shall be void, and may be set aside or vacated by any court of equity upon a bill filed for that purpose, by the person so granting, giving, entering into or executing the same or by any creditor or by his executors, administrators, or by any heir, purchaser or other persons interested therein; provided however, that the holder in due course of any such security, bond, bill or note which is otherwise negotiable holds such instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of such instrument for the full amount thereof against all parties liable thereon.

History: Laws 1856-1857, p. 36; C.L. 1865, ch. 36, § 4; C.L. 1884, § 2293; C.L. 1897, § 3202; Code 1915, § 2510; C.S. 1929, § 58-104; 1941 Comp., § 25-1004; 1953 Comp., § 22-10-4; Laws 1955, ch. 77, § 1.

Cross references. — For transfer and negotiation generally, see 55-3-201 to 55-3-207 NMSA 1978.

For holder in due course generally, see 55-3-301 to 55-3-310 NMSA 1978.

Emergency clauses. — Laws 1955, ch. 77, § 2, contained an emergency clause and was approved March 4, 1955.

Party knowingly loaning money for gambling cannot recover by suit. — Where money is loaned or advanced with the understanding between the parties that it shall be used in gambling, or where the party advancing the money shares in the gambling transaction, such party becomes particeps criminis and cannot recover in suit for the money loaned or advanced. Appleton v. Maxwell, 1901-NMSC-009, 10 N.M. 748, 65 P. 158.

"Gambling" not restricted to games of chance. — The word "gambling" is not restricted to wagering upon the result of any game of chance, but applies to wagering of all kinds, and there can be no doubt that a horse race is a gambling device when adopted for such purpose. Joseph v. Miller, 1876-NMSC-001, 1 N.M. 621.

Coin flip to decide between two alternatives not gambling. — Agreement between vendor and purchaser of a mortgaged farm whereby a coin flip was used to determine whether or not purchase price would be reduced, but where regardless of outcome, vendor would be relieved of obligation to pay penalty in the event that purchaser decided to pay off mortgage, was not void under the provisions of Sections 44-5-1 and 44-5-4 NMSA 1978 as being arrived at through gambling. This was no evil in the use of such coin flip for the purpose of determining which alternative should be applicable. (Because Sections 30-19-1 and 30-19-2 NMSA 1978 were not in effect at the time the agreement took place, the definitions of "bet" and "gambling device" as contained in those sections were not used in deciding this case.) Garvin v. Hudson, 1966-NMSC-108, 76 N.M. 403, 415 P.2d 369.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Gambling §§ 207 to 211.

Effect of Negotiable Instruments Act on statute invalidating instrument given for gambling consideration, 8 A.L.R. 314, 11 A.L.R. 211, 37 A.L.R. 698, 46 A.L.R. 959.

Right of maker, or other party to transfer, to make the defense that paper was transferred on a gambling consideration, 56 A.L.R. 1322.

38 C.J.S. Gaming §§ 26, 30 et seq.