2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 5 - Partition › Section 42-5-1 - [Complaint; prayer.]

When any lands, tenements or hereditaments shall be owned in joint tenancy, tenancy in common or coparcenary, whether the right or title be derived by donation, grant, purchase, devise or descent, it shall be lawful for any one or more persons interested, whether they be in possession or not, to present to the district court their complaint in chancery, praying for a division and partition of such premises, according to the respective rights of the parties interested therein, and for a sale thereof, if it shall appear that partition cannot be made without great prejudice to the owners.
History:
C.L. 1897, § 2685 (266), added by Laws 1907, ch. 107, § 1 (266); Code 1915, § 4379; C.S. 1929, § 105-1901; 1941 Comp., § 25-1201; 1953 Comp., § 22-13-1.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes.
— The New Mexico Rules of Civil Procedure for District Courts provide that there shall be only one form of action, "civil action," and that a civil action is commenced by filing a complaint.
See
Rules 1-002 and 1-003 NMRA.
Cross references.
— For an attorney receiving fee in land entitled to partition,
see
42-6-10 NMSA 1978.
For real estate descriptions in pleading,
see
47-1-46 NMSA 1978.
Partition of land valuable as a wind farm.
— The right to harvest wind energy is an inchoate interest in land which does not become vested until reduced to possession by employing it for a useful purpose and does not prevent the partition of land the primary value of which is for wind farm development.
Romero v. Bernell
, 603 F. Supp. 2d, 1333 (D.N.M. 2009).
Partition possible notwithstanding easement.
— A suit for partition may be maintained notwithstanding the land is subject to an easement.
Thompson v. de Snyder
, 1908-NMSC-011, 14 N.M. 403, 94 P. 1014.
Court determines equities as between parties.
— The trial court, in making any partition of lands, has the right to make a determination of the equities as between the parties.
Prude v. Lewis
, 1967-NMSC-174, 78 N.M. 256, 430 P.2d 753.
Leaseholds may be partitioned.
— The Partition Act does not abrogate common-law equitable judicial partition powers; thus, the partitioning of federal and state grazing leases was not precluded.
Sims v. Sims
, 1996-NMSC-078, 122 N.M. 618, 930 P.2d 153.
The Commissioner of Public Lands was not an indispensable party to an action involving the partition of state grazing leases.
Sims v. Sims
, 1996-NMSC-078, 122 N.M. 618, 930 P.2d 153.
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.
Parol partition.
— Where the adult heirs of the deceased owners of the property partitioned the property; one part of the property was set aside to plaintiff who was a minor; and plaintiff knew of the parol partition, but plaintiff never carried out the partition before or after reaching the age of majority by taking possession of the tract, asserting ownership, or doing things denoting an acceptance of the oral agreement, the parol partition did not destroy the co-tenancy as to plaintiff and the other owners.
Gurule v. De Chacon
, 1956-NMSC-108, 61 N.M. 488, 303 P.2d 696.
Intervention of commissioners essential for entry of judgment.
— The district court has no power to enter a judgment partitioning real estate without the intervention of commissioners; but where judgment is entered upon a report by the commissioners which is reversed on appeal, the trial court may properly refuse to enter judgment upon remand.
Field v. Hudson
, 1918-NMSC-008, 25 N.M. 7, 176 P. 73.
Effect of judgment in partition suit.
— A judgment in a statutory partition suit declaring the rights of all the parties, ordering partition, and appointing commissioners for such purpose is an interlocutory decree.
Torrez v. Brady
, 1930-NMSC-101, 35 N.M. 217, 292 P. 901.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
59A Am. Jur. 2d Partition §§ 1, 17 to 29, 32, 80 to 86, 149 to 163.
Testamentary provision prohibiting or postponing partition, 14 A.L.R. 1240, 85 A.L.R. 1321.
Pleading, right under general prayer to relief inconsistent with prayer for specific relief, 30 A.L.R. 1183.
Severance of estate in mineral from estate in surface by one or more of cotenants as affecting right to partition, 39 A.L.R. 741.
Cotenant's right to partition of oil and gas, 40 A.L.R. 1408, 91 A.L.R. 205.
Estoppel of one not party to partition by failure to disclose his interests in the property, 50 A.L.R. 791.
Different tracts of land, right to partition of, in same proceeding, 65 A.L.R. 893.
Devise or bequest of property as compensation for services, claim under contract as to, as affecting right to partition of heirs of promisor, 69 A.L.R. 87, 106 A.L.R. 742.
Taxes or local improvement assessment, right of purchaser at invalid sale for, to secure reimbursement from owner in action for partition, 86 A.L.R. 1232.
Fee simple conditional estate, partition of, 114 A.L.R. 615.
Jurisdiction of justice of the peace of partition action, 115 A.L.R. 538.
Lessees who are co-tenants, partition among, 151 A.L.R. 400.
Dower rights as affecting partition proceedings, 159 A.L.R. 1129.
Homestead rights as affecting partition proceedings, 159 A.L.R. 1152.
Acquisition by one party, pending partition suit, of all outstanding joint and common interests as affecting power of court to determine questions of controverted title, remove clouds on title, etc., 162 A.L.R. 227.
Construction and application of provision for assignment, to one of co-owners, of real estate not readily divisible, 169 A.L.R. 862.
Possessory requirements for cotenant's suit for partition, 171 A.L.R. 932.
Partition of undivided interests in minerals and place, 173 A.L.R. 854.
Rights of surviving spouse and children in proceeds of partition sale of homestead and decedent's estate, 6 A.L.R.2d 515.
Pleading in partition action to authorize incidental relief, 11 A.L.R.2d 1449.
Timber rights as subject to partition, 21 A.L.R.2d 618.
Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.
Modern status of Massachusetts or business trust, 88 A.L.R.3d 704.
Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.
68 C.J.S. Partition §§ 13, 16, 19, 70 to 72, 89, 156, 172.