2021 New Mexico Statutes
Chapter 42 - Actions and Proceedings Relating to Property
Article 5 - Partition
Section 42-5-5 - [Decree; binding effect.]

The court shall ascertain and declare the rights, titles and interests of all the parties to such proceedings and render such decree as may be required by the rights of the said parties, which said decree shall be binding upon all of the said parties, whether they be adults or not.

History: C.L. 1897, § 2685 (270), added by Laws 1907, ch. 107, § 1 (270); Code 1915, § 4383; C.S. 1929, § 105-1905; 1941 Comp., § 25-1205; 1953 Comp., § 22-13-5.

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

Purpose of decree. — A decree in partition does not create a new title, but merely segregates the right of possession, leaving the parties with the same title under which they previously held. Rodriguez v. La Cueva Ranch Co., 1912-NMSC-028, 17 N.M. 246, 134 P. 228.

Interlocutory decree defined. — A judgment which declares the rights of all parties, ordering partition of the premises, and appointing commissioners for such purpose, is an interlocutory decree. Torrez v. Brady, 1930-NMSC-101, 35 N.M. 217, 292 P. 901; Montoya v. Unknown Heirs of Vigil, 1911-NMSC-042, 16 N.M. 349, 120 P. 676, aff'd sub nom. Montoya v. Gonzales, 232 U.S. 375, 34 S. Ct. 413, 58 L. Ed. 645 (1914).

When further judgment and decree necessary. — The judgment and decree of the court declaring the rights of the parties, ordering partition, and appointing commissioners is interlocutory. It constitutes a final declaration of the rights, titles and interests of the respective parties, but further judgment and decree to vest and divest title to the respective portions upon partition, or, in the event of a sale, to confirm the sale and distribute the proceeds is required. Prude v. Lewis, 1967-NMSC-174, 78 N.M. 256, 430 P.2d 753.

Review of interlocutory decrees. — Upon appeal from the final judgment, interlocutory orders or decrees and the proceedings upon which they are based, may be reviewed, even though an appeal might have been taken therefrom at the time entered. Torrez v. Brady, 1932-NMSC-080, 37 N.M. 105, 19 P.2d 183.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 59A Am. Jur. 2d Partition §§ 18, 88 to 109, 194 to 197.

Adjustment on partition of improvements made by tenant in common, 1 A.L.R. 1189, 122 A.L.R. 234.

Respective rights of owners of different parcels into which land subject to an oil and gas lease has been divided, 5 A.L.R. 1162, 16 A.L.R. 588, 64 A.L.R. 634.

Right to, and effect of, partition of undivided interests held respectively in fee and in life estate, with remainder, 12 A.L.R. 644, 134 A.L.R. 661.

Division of building, 28 A.L.R. 727.

Power to decree pecuniary sum as owelty to equalize shares of parties in partition, 65 A.L.R. 352.

Protection, in partition of grantee in deed purporting to convey a definite parcel by part only of the cotenants, 77 A.L.R.2d 1376.

68 C.J.S. Partition §§ 45, 112 to 114, 121, 125, 222.