2020 New Mexico Statutes
Chapter 42 - Actions and Proceedings Relating to Property
Article 7 - Specific Performance
Section 42-7-1 - [Contracts for sale of real estate; venue of action.]

An action to compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants or any of them reside; but if any of the defendants are nonresidents of the state, it shall be brought in the county where the real estate or some part thereof is situated.

History: Laws 1933, ch. 9, § 1; 1941 Comp., § 25-1601; 1953 Comp., § 22-18-1.

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

Cross references. — For real property descriptions in pleading, see 47-1-46 NMSA 1978.

Statute of frauds. — Where sellers verbally agreed to sell a tract of land to buyers for a home site; in reliance on the agreement, buyers cashed IRA and 401-K retirement plans at a substantial penalty; with the consent of the sellers, buyers went into possession of the land, purchased a double-wide mobile home and moved the home onto the land, erected valuable temporary and permanent improvements on the land, and landscaped the property; and buyers spent approximately $85,000 in purchasing the home and making improvements, the buyers' actions were sufficient part performance in reliance on the oral agreement to take the contract outside the statute of frauds. Beaver v. Brumlow, 2010-NMCA-033, 148 N.M. 172, 231 P.3d 628.

Court has jurisdiction to set purchase price. — Where sellers verbally agreed to sell a tract of land to buyers for a home site and the parties did not determine the purchase price of the land, it was within the equitable jurisdiction of the district court to set the purchase price at the fair market value as determined by an objective appraiser. Beaver v. Brumlow, 2010-NMCA-033, 148 N.M. 172, 231 P.3d 628.

Specific performance in payment for services not liberally applied. — While the rule allowing specific performance of contracts to convey property in payment for services, even exceptional and extraordinary in character, is not to be lightly, or too liberally, applied, there are many circumstances where the value of the services cannot be fairly and reasonably measured in dollars, and where it was never intended that they should be, and in such cases a judgment for specific performance should stand. In re McGee's Estate, 1942-NMSC-024, 46 N.M. 256, 127 P.2d 239.

When real estate binder incapable of specific performance. — A real estate binder uncertain and indefinite as to the maturity of the deferred balance is incapable of specific performance. Edward H. Snow Dev. Co. v. Omsheer, 1956-NMSC-119, 62 N.M. 113, 305 P.2d 727.

Inappropriate allegations do not entitle plaintiff to suit for specific performance. — When the substance of a judgment is necessarily an adjudication that appellee is the owner of an undivided one-eighth interest in real estate, this judgment cannot be changed by calling the interest in real estate a debt which is secured by a lien on the whole lease or by a suit for specific performance even though there might have been such a suit if plaintiff's petition had disclosed appropriate allegations. Heath v. Gray, 1954-NMSC-087, 58 N.M. 665, 274 P.2d 620.

Allegations that complainant has performed. — It is well established that a complainant in a suit for specific performance must allege that he has performed his part of the contract or that he is ready, able and willing to perform it. A vendor complainant in such a proceeding must by his pleading show not only that he has a legally enforceable contract but that he has complied therewith by performing or offering to perform. Hilger v. Cotter, 1966-NMSC-016, 75 N.M. 699, 410 P.2d 411.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 71 Am. Jur. 2d Specific Performance §§ 112 to 151, 180 to 184.

Both realty and tangible personalty, as specific performance of contract for sale of, 152 A.L.R. 16.

Contract to sell land not signed by all landowners, 154 A.L.R. 768.

Specific performance of land contract where vendor will be compelled to incur expense in clearing title, 171 A.L.R. 1299.

Specific performance of option for renewal of lease of real property, 173 A.L.R. 1169.

Improvement of property by owner after execution of contract as affecting purchaser's right to specific performance, 174 A.L.R. 699.

Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.

Parties to action for specific performance of contract for conveyance of realty after death of party to the contract, 43 A.L.R.2d 938.

Validity, construction and effect of contract option, or provision for repurchase by vendor, 44 A.L.R.2d 342.

Indefiniteness as precluding specific performance of contract for sale or exchange of real estate failing to specify time for giving of possession, 56 A.L.R.2d 1274.

Uncertainty as to terms of mortgage or of accompanying note or bond contemplated by real estate sales contract as affecting right to specific performance, 60 A.L.R.2d 251.

Venue of action for specific performance of contract pertaining to real property, 63 A.L.R.2d 456.

Time specified in real estate contract for giving notice of exercise of option to purchase, effect of, 72 A.L.R.2d 1127.

Effect of provision in real-estate option or land sale contract making the contract subject to zoning or rezoning of the property, 76 A.L.R.2d 1195.

Necessity and sufficiency of allegation, in a suit for specific performance on a contract for the sale of land, as to the adequacy of the consideration or as to the fairness of the contract, 100 A.L.R.2d 551.

Requisite definiteness of provision in contract for sale or lease of land, that vendor or landlord will subordinate his interest to permit other party to obtain financing, 26 A.L.R.3d 855.

Marketability of title as affected by lien dischargeable only out of funds to be received from purchaser at closing, 53 A.L.R.3d 678.

Specific performance of land contract notwithstanding failure of vendee to make required payments on time, 55 A.L.R.3d 10.

Validity of governmental borrowing or expenditure for purposes of acquiring, maintaining or improving stadium for use of professional athletic team, 67 A.L.R.3d 1186.

Lessee's first privilege option to purchase or terms of similar import as requiring existence of prior offer from third party, 76 A.L.R.3d 1139.

Specific performance of agreement for sale of private franchise, 82 A.L.R.3d 1102.

Exceptions to rule that oral gifts of land are unenforceable under statute of frauds, 83 A.L.R.3d 1294.

Check given in land transaction as sufficient writing to satisfy statute of frauds, 9 A.L.R.4th 1009.

Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.

Option to purchase real property as affected by optionor's receipt of offer for, or sale of, larger tract which includes the optioned parcel, 34 A.L.R.4th 1217.

Excessiveness or adequacy of attorneys' fees in matters involving real estate - modern cases, 10 A.L.R.5th 448.

Illegality as basis for denying remedy of specific performance for breach of contract, 58 A.L.R.5th 387.

Treatment, under Federal Juvenile Delinquency Act (18 USCS §§ 5031-5042), of juvenile alleged to have violated law of United States, 137 A.L.R. Fed. 481.

81 C.J.S. Specific Performance §§ 75 to 79; 81A C.J.S. Specific Performance § 131.