2021 New Mexico Statutes
Chapter 39 - Judgments, Costs, Appeals
Article 5 - Sales Under Execution and Foreclosure
Section 39-5-1 - [Time and notice of judicial sales.]

That no lands, tenements, goods or chattels shall be sold by virtue of any execution or other process, including chattel or real estate mortgages, unless such sale be at public vendue, between the hours of nine in the morning and the setting of the sun of the same day, nor unless the time and place of holding such sale and full description of property to be sold shall have previously been published for four weeks preceding said sale in English or Spanish, as the officer conducting said sale in his judgment may deem will give the most extensive notice in the county in which said property is situate, or, if there be no newspaper printed in said county, then in the newspaper chosen as the official paper for said county, and also by posting six such notices printed or written or partly printed or written in six of the most public places in said county.

History: Laws 1895, ch. 37, § 1; C.L. 1897, § 3113; Code 1915, § 2195; C.S. 1929, § 46-106; 1941 Comp., § 21-201; 1953 Comp., § 24-2-1.

Cross references. — For commission and expenses due sheriff for judicial sale, see 4-41-17 NMSA 1978.

For publication of legal notice, see 14-11-1 NMSA 1978 et seq.

For prohibition against selling real property under power of sale, see 48-7-7 NMSA 1978.

For sale pursuant to "chattel mortgage," see 55-9-101 NMSA 1978 et seq., relating to secured transactions.

For foreclosure of mortgages on railroad property, see 63-5-1 to 63-5-4 NMSA 1978.

Applicability of article. — While 39-5-1 to 39-5-3 and 39-5-15 to 39-5-23 NMSA 1978 apply generally to foreclosures, 39-5-5 to 39-5-13 NMSA 1978 apply only to sales and levies under writs of execution. Armstrong v. Csurilla, 1991-NMSC-081, 112 N.M. 579, 817 P.2d 1221.

Notice in foreclosure sales. — With respect to the kind of notice to be employed in cases of sales under execution and foreclosure, this section, rather than Rule 1-005, governs. Prod. Credit Ass'n v. Williamson, 1988-NMSC-041, 107 N.M. 212, 755 P.2d 56.

Mortgagee first lienholder could not use the judicial system to enforce its rights in a foreclosure proceeding after deliberately failing to serve notice upon junior lienholders of record of its intention to hold the foreclosure sale, even though the junior lienholders were parties to a lawsuit brought by the mortgagee and were entitled to actual notice of the sale. W. Bank v. Fluid Assets Dev. Corp., 1991-NMSC-020, 111 N.M. 458, 806 P.2d 1048.

Publication of notice of foreclosure sale. — Where guarantors entered into a guaranty agreement for a small business administration loan; the debtor defaulted and the SBA filed suit against the guarantors; the district court granted summary judgment for the SBA; and the SBA published notice of the sale of real property that secured the loan, but did not directly notify the guarantors of the sale, the SBA complied with the provisions of New Mexico law with respect to foreclosure sales and the district court did not err in refusing to set aside the foreclosure sale. United States v. New Mexico Landscaping, Inc., 785 F.2d 843 (10th Cir. 1986).

Newspaper publication sufficient. — Where notices of sale are published in a newspaper printed in the county where the property is situate, this section does not require the posting of notices. Pecos Valley Lumber Co. v. Freidenbloom, 1917-NMSC-067, 23 N.M. 383, 168 P. 497.

Sale priorities. — Encumbered property retained by a mortgagor should be liable to sale before looking to portion conveyed by mortgagor to another party. Seasons, Inc. v. Atwell, 1974-NMSC-080, 86 N.M. 751, 527 P.2d 792.

Property in custodia legis. — Clerk of justice of the peace court (now replaced by magistrate courts), charged with forgery of signature on title certificate appertaining to automobile which had been levied upon under a writ of execution issued out of that court, could not have come into legal possession through the execution, either in an individual capacity or as an employee, as the automobile was in custodia legis. State v. Weber, 1966-NMSC-164, 76 N.M. 636, 417 P.2d 444.

Owner's rights after levy. — Owner of an automobile levied upon under a writ of execution issued out of justice of the peace court (now replaced by magistrate courts), was not, by reason of the levy of the execution, divested of all legal rights and interests in the vehicle. State v. Weber, 1966-NMSC-164, 76 N.M. 636, 417 P.2d 444.

Effect of irregularity. — Foreclosure sales made otherwise than as herein provided are irregular and erroneous, but not void. McCloskey v. Shortle, 1937-NMSC-005, 41 N.M. 107, 64 P.2d 1294.

Mortgagor waives irregularities by failure to object until after trial court has lost jurisdiction to set aside its confirmation of sale. McCloskey v. Shortle, 1937-NMSC-005, 41 N.M. 107, 64 P.2d 1294.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 30 Am. Jur. 2d Executions § 456 et seq.

Effect of omission of seal from order of sale, 30 A.L.R. 735.

Recitals in sheriff's deed as prima facie evidence of giving notice, 36 A.L.R. 998, 108 A.L.R. 667.

Sunday or holiday: judicial, execution or tax sale on election day, holiday, or Sunday, 58 A.L.R. 1273.

Indefiniteness of notice as regards place of sale, 120 A.L.R. 660.

Right of purchaser in execution or judicial sale to value of use and occupation by judgment debtor or his successor in interest during period of redemption, 153 A.L.R. 739.

Title of stranger to litigation who purchased at judicial sale before appeal or pending appeal without supersedeas as affected by reversal of decree directing sale, 155 A.L.R. 1252.

Liability for use and occupation, or rents and profits of purchaser at execution or judicial sale who is required to restore property because of reversal or vacation of judgment or sale thereunder, 156 A.L.R. 905.

Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt, 166 A.L.R. 969, 75 A.L.R.2d 1172.

Right of purchaser at judicial sale to question validity of purported lien, 171 A.L.R. 302.

Enforceability as between the parties of agreement to purchase property at judicial sale for their joint benefit, 14 A.L.R.2d 1267.

Duties, rights, and remedies between attorney and client where attorney purchases property of client at or through tax, execution, or judicial sale, 20 A.L.R.2d 1280.

Rights of parties under an oral agreement to buy or bid in land for another, 27 A.L.R.2d 1285.

Inadequacy of price as basis for setting aside execution or sheriff's sale - modern cases, 5 A.L.R.4th 794.

Right of purchaser at execution sale, upon failure of title, to reimbursement or restitution from judgment creditor, 33 A.L.R.4th 1206.

Judgment lien or levy of execution on one joint tenant's share or interest as severing joint tenancy, 51 A.L.R.4th 906.

Right of debtor to "de-acceleration" of residential mortgage indebtedness under Chapter 13 of Bankruptcy Code of 1978 (11 USCS § 1322(b)), 67 A.L.R. Fed. 217.

33 C.J.S. Executions § 211; 50 C.J.S. Judicial Sales §§ 10, 17.