2021 New Mexico Statutes
Chapter 42 - Actions and Proceedings Relating to Property
Article 5 - Partition
Section 42-5-6 - [Commissioners; appointment; qualifications; oath; partition of land; report.]

The court, when it shall decree a partition of any premises, shall appoint three commissioners not connected with any of the parties either by consanguinity or affinity and entirely disinterested; each of whom shall take an oath before some person authorized to administer the same, fairly and impartially to make partition of the said premises in accordance with the decree of the court as to the rights and interests of the parties, if the same can be done consistently with the interests of the estate, and the said commissioners shall go upon the premises and make partition of said lands, tenements and hereditaments, assigning to each party his share by metes and bounds, and shall make report in writing, under their hands, to the court, with all convenient speed, or within the time which may be prescribed by the court, and the court may upon the coming in and filing of such report make all such orders thereon as may be necessary to a final disposition of the case.

History: C.L. 1897, § 2685 (271), added by Laws 1907, ch. 107, § 1 (271); Code 1915, § 4384; C.S. 1929, § 105-1906; 1941 Comp., § 25-1206; 1953 Comp., § 22-13-6.

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

Partition not absolute right. — A cotenant is entitled to a partition as a matter of right, not merely as a matter of grace within the discretion of the court. Although this right is sometimes said to be absolute, it can be denied where the partition would be against public policy, legal principles or equitable principles, or is waived by an agreement of the parties. Martinez v. Martinez, 1982-NMSC-097, 98 N.M. 535, 650 P.2d 819.

Commissioners must acquire firsthand knowledge of value of premises. — The provision that the "commissioners shall go upon the premises and make partition of said lands" is directory only, requiring nothing more than that the commissioners fully acquaint themselves with and acquire firsthand knowledge of the value of the premises before making partition. Sandoval v. Sandoval, 1956-NMSC-027, 61 N.M. 38, 294 P.2d 278.

Except where commissioners are longtime residents of area and have personal knowledge of the land, the residential properties and their respective values, there is sufficient compliance with the statute even if none of the commissioners has actually gone upon the land subsequent to their selection. Sandoval v. Sandoval, 1956-NMSC-027, 61 N.M. 38, 294 P.2d 278.

When waiver of appointment incomplete. — Three of the defendants and the plaintiff could not effectively accomplish a total departure from the requirement of the rule that a commissioner be appointed where it nowhere appeared that the other six defendants, with interests in the property, ever agreed to waive the statutory procedure. Marquez v. Marquez, 1965-NMSC-016, 74 N.M. 795, 399 P.2d 282.

No instruction required. — The statute contains no requirement for instruction of the commissioners and no error is committed by the court in refusing to give requested instructions. Field v. Hudson, 1918-NMSC-008, 25 N.M. 7, 176 P. 73.

Parties may request instructions. — Where instructions to commissioners correctly stated the law under the statutes, and where both parties had requested the court to instruct the commissioners as to the law, no complaint could be successfully made against the instructions given. Field v. Hudson, 1918-NMSC-008, 25 N.M. 7, 176 P. 73.

Rights, titles and interests of parties should first be determined and a decree entered accordingly so that the appraisers can then, as required by the provisions of this section, fairly and impartially make a partition of the premises in accordance with the decree of the court as to the rights and interests of the parties, if such can be accomplished. Prude v. Lewis, 1967-NMSC-174, 78 N.M. 256, 430 P.2d 753.

Giving notice or hearing evidence not part of duties. — The commissioners are not obligated to give notice to the parties and to hear evidence, the parties interested in having their day in court when the report comes before the court for approval or rejection. Field v. Hudson, 1918-NMSC-008, 25 N.M. 7, 176 P. 73.

Court powerless to enter judgment without report. — Under the statute, the court has no power to enter a judgment partitioning real estate without the intervention of commissioners, and the judgment of the court must be based upon the report of such commissioners. Field v. Hudson, 1918-NMSC-008, 25 N.M. 7, 176 P. 73.

Procedure required of trial court to contravene recommendation. — The trial court, after appointing commissioners in an action for partition, may not contravene the recommendation from the commissioners without first filing findings of fact and conclusions of law expressing the reasons for not following such recommendation. Moore v. Sussman, 1978-NMSC-066, 92 N.M. 70, 582 P.2d 1283.

Reports rejected when influence exerted. — When the conduct of an interested party influences the acts of the commissioners, the reports should be rejected. Sandoval v. Sandoval, 1956-NMSC-027, 61 N.M. 38, 294 P.2d 278.

Court's jurisdiction dependent upon report. — Trial court lacks jurisdiction to decree a sale in partition, absent the commissioner's report. Prude v. Lewis, 1967-NMSC-174, 78 N.M. 256, 430 P.2d 753.

Parol evidence admissible in support of exceptions to report. — Parol evidence, without restriction as to the form in which it shall be presented, is admissible in support of exceptions to a report of the commissioners. Field v. Hudson, 1918-NMSC-008, 25 N.M. 7, 176 P. 73.

Categorizing lands by descriptive names not error. — There was no error by the trial court in its acceptance of the commissioners' report which categorized the lands involved by descriptive names rather than by metes and bounds in accordance with this section, as the applicable metes and bounds descriptions were contained in the various pleadings, exhibits and in the transcript, and there was no objection to the use of area names at the time of the hearing, and the transcript reflects that the parties were quite alert about the particular areas in controversy. Sullivan v. Sullivan, 1971-NMSC-055, 82 N.M. 554, 484 P.2d 1264.

Pooling of interests. — A group of cotenants of property could pool their interests for purposes of a partition proceeding. Sims v. Sims, 1996-NMSC-078, 122 N.M. 618, 930 P.2d 153.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 59A Am. Jur. 2d Partition §§ 110 to 116, 123.

Burden of proof as regards alleged prior voluntary partition of property, 1 A.L.R.2d 473.

Compensation for improvements made or placed on premises of another by mistake, 57 A.L.R.2d 263.

Judicial partition of land by lot or chance, 32 A.L.R.4th 909.

68 C.J.S. Partition §§ 21, 46, 130, 151, 159, 164, 221, 238, 239.