2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 4 - Ejectment and Recovery of Real Property › Section 42-4-1 - [When ejectment maintainable.]

The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises.
History:
C.L. 1897, § 2685 (250), added by Laws 1907, ch. 107, § 1 (250); Code 1915, § 4360; C.S. 1929, § 105-1801; 1941 Comp., § 25-801; 1953 Comp., § 22-8-1.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For forcible entry and detainer suits in district courts,
see
35-10-1 NMSA 1978.
For action of ejectment against persons claiming community land grants improperly,
see
49-2-14 NMSA 1978.
Landlord's right to possession of premises core of action.
— The very foundation of the right to maintain an action of ejectment, both at the common law and under the territorial statute, is the landlord's right to the possession of the premises.
Osborne v. United States
, 1885-NMSC-010, 3 N.M. (Gild.) 337, 5 P. 465 (decided under former law).
Right to possession.
— In ejectment, the parties' rights to possession are primarily in issue.
Pacheco v. Martinez
, 1981-NMCA-116, 97 N.M. 37, 636 P.2d 308.
Right to possession at time of filing complaint essential.
— A right to possession of the premises at the time of filing the complaint is essential to maintaining ejectment both at common law and under the statutory law of New Mexico.
Kerr-McGee Corp. v. Bokum Corp.
, 453 F.2d 1067 (10th Cir. 1972).
Adverse possessor maintaining ejectment action.
— The fact that grantee's spouse, who claimed land on theory of adverse possession, had not been in actual possession of all of land in question did not defeat grantee's spouse's right to possession of entire tract where possession was based on quiet title decree describing entire tract.
Quintana v. Montoya
, 1958-NMSC-075, 64 N.M. 464, 330 P.2d 549.
Determination of better title between parties.
— In ejectment, where no legal title is shown in either party, the party showing prior possession in himself, or those through whom he claims, will be held to have the better title.
Romero v. Herrera
, 1921-NMSC-096, 27 N.M. 559, 203 P. 243;
Blea v. Sandoval
, 1988-NMCA-036, 107 N.M. 554, 761 P.2d 432, cert. denied 107 N.M. 413, 759 P.2d 200.
Ejectment on superior title is a breach of the warranty of good title.
Garcia v. Herrera
, 1998-NMCA-066, 125 N.M. 199, 959 P.2d 533, cert. denied, 125 N.M. 145, 958 P.2d 103.
Remedy for breach of covenant not in ejectment.
— In absence of an express forfeiture provision in a lease, the lessor's remedy for breach of covenants, express or implied, is an action for damages or a suit in equity for cancellation, and not an action at law for ejectment.
Kerr-McGee Corp. v. Bokum Corp.
, 453 F.2d 1067 (10th Cir. 1972).
Joinder of causes of action.
— Both legal and equitable remedies are administered by a single court as two complementary departments of jurisprudence so that there is no error by a joinder of the causes of action. Therefore, plaintiff has the right to bring a suit in ejectment and to request a prayer for relief and defendant can counterclaim in a suit to quiet title.
Martinez v. Mundy
, 1956-NMSC-037, 61 N.M. 87, 295 P.2d 209,
overruled on other grounds by
Evans Fin. Corp. v. Strasser
, 1983-NMSC-053, 99 N.M. 788, 664 P.2d 986.
Burden of proof.
— In action of ejectment, plaintiff must recover on the strength of his own title, and where the grant to him contains an exception or reservation, he must show that the land in controversy was not reserved.
Maxwell Land Grant Co. v. Dawson
, 1893-NMSC-014, 7 N.M. 133, 34 P. 191,
rev'd on other grounds
, 151 U.S. 586, 14 S. Ct. 458, 38 L. Ed. 279 (1894) (decided under former law).
Jury not restricted to technical definition in boundary dispute.
— Where in an action in ejectment the boundaries were in dispute and the term "las lomas," the hills, was used in the deed to designate the termination of the property, it was error for the court to limit the jury to a technical definition and to exclude from their consideration parol evidence of local distinctions between "altidos," little hills, "matoral," sand hills around bushes, "lomitas," groups of hills, and "las lomas" or hills of considerable height, since "las lomas" constituted a latent ambiguity and was subject to explanation by parol.
Gentile v. Crossan
, 1894-NMSC-013, 7 N.M. 589, 38 P. 247 (decided under former law).
Law reviews.
— For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
For survey, "The Uniform Owner-Resident Relations Act," see 6 N.M. L. Rev. 293 (1976).
For article, "Survey of New Mexico Law, 1982-83: Property Law," see 14 N.M.L. Rev. 189 (1984).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
25 Am. Jur. 2d Ejectment §§ 1, 2; 65 Am. Jur. 2d Quick Title § 30.
Taxes, right of owner who has in fact paid taxes in question to maintain ejectment against purchaser at tax sale, 26 A.L.R. 631.
Railroad right-of-way, ejectment as remedy for interference with, 47 A.L.R. 563.
Laches as affecting right of one whose property is taken for public use to maintain ejectment, 58 A.L.R. 684.
Mortgage foreclosure proceedings which are imperfect or irregular, ejectment by, or against, purchaser under, 73 A.L.R. 640.
Vendor in contract for sale or exchange of real property, right of, to bring suit for forfeiture or to recover possession without first giving notice or making demand for possession, 94 A.L.R. 1250.
Jurisdiction of justice of the peace (or similar court) of ejectment action, 115 A.L.R. 514.
Right to use force to obtain possession of real property to which one is entitled, 141 A.L.R. 250.
Remedy of tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192.
Measure and items of recovery for improvements mistakenly placed or made on land of another, 24 A.L.R.2d 11.
Judgment involving real property against one spouse as binding against other spouse not a party to the proceeding, 58 A.L.R.2d 701.
Rule that plaintiff in ejectment need not trace title back of common source, 5 A.L.R.3d 375.
28A C.J.S. Ejectment § 3 et seq.