Sales Under Execution and Foreclosure

NMSA 1978 ch. 39, art. 5

in effect

NMSA 1978, § 39-5-1 [Time and notice of judicial sales.]

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. 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.

NMSA 1978, § 39-5-1.1 Judicial sales of perishable property; court order; petition; hearing

39-5-1.1. Judicial sales of perishable property; court order; petition; hearing In all cases of the sale of perishable goods by virtue of any execution or other process pursuant to the provisions of Section 39-5-1 NMSA 1978 or by virtue of the foreclosure of a landlord's lien pursuant to the provisions of Section 48-3-14 NMSA 1978, when the property being sold is of a perishable nature and liable to be lost or diminished in value before the time for the notice required for such sale has elapsed, the judgment creditor or the lienholder may petition the judge of the district court having jurisdiction, setting forth the kind, nature and condition of the property being sold, its approximate value and the possibility of damage to its value. If the judge finds the petition sufficient in form and conditions, he may hear testimony of witnesses as to the property and if he believes that the interests of both the owner of the goods and the lienholder or judgment creditor will be protected by the sale, he may order such sale to be made, may order the posting of appropriate security and may direct the manner of such sale. Laws 1981, ch. 13, § 1.

NMSA 1978, § 39-5-1.2 ["Real estate" and "real property" defined.]

39-5-1.2. ["Real estate" and "real property" defined.] As used in Chapter 39, Article 5 NMSA 1978 "real estate" or "real property" includes leaseholds. As used in this section, "leasehold" means an estate in real estate or real property held under a lease. 1978 Comp., § 39-5-1.2, enacted by Laws 1991, ch. 234, § 2.

NMSA 1978, § 39-5-2 [Unlawful sales; liability of officer.]

39-5-2. [Unlawful sales; liability of officer.] If any sheriff or other person shall sell any lands, tenements, goods or chattels by virtue of any process otherwise than in the manner aforesaid or without such previous notice, the sheriff or other person so offending shall for every offense, forfeit and pay the sum of fifty dollars [($50.00)] with costs of suit in any district court in this territory [state], to be recovered by the person whose lands are sold. Laws 1895, ch. 37, § 2; C.L. 1897, § 3114; Code 1915, § 2196; C.S. 1929, § 46-107; 1941 Comp., § 21-202; 1953 Comp., § 24-2-2.

NMSA 1978, § 39-5-3 [Contents of sale notices.]

39-5-3. [Contents of sale notices.] All notices of sale by sheriffs under execution, order or decree of any district court in this state shall contain as briefly as possible the style or title of the cause in which said judgment, order or decree was obtained, the nature of the action, the date of the rendition of said judgment, or the making of said order or decree, the amount thereof, with interest to date of sale, and the description of the property to be sold, sufficient for the complete identification thereof, together with a statement of the date, hour and conditions of said sale. Laws 1887, ch. 36, § 4; C.L. 1897, § 3115; Code 1915, § 2198; C.S. 1929, § 46-109; 1941 Comp., § 21-203; 1953 Comp., § 24-2-3.

NMSA 1978, § 39-5-4 [Notice of sale for personal property not exceeding three hundred dollars.]

39-5-4. [Notice of sale for personal property not exceeding three hundred dollars.] That hereafter when personal property shall be sold under execution issued out of any justice court [magistrate court], or from the district court, when the property seized under execution does not exceed three hundred dollars, ($300.00), notice of such sale may be given by posting written or printed notices of such sale at least ten days prior to the date of sale in at least five public places in the county, one of which places shall be at the courthouse in said county, and one at the place where said sale is to be held. Laws 1931, ch. 8, § 1; 1935, ch. 68, § 1; 1941 Comp., § 21-204; 1953 Comp., § 24-2-4.

NMSA 1978, § 39-5-5 [Limit on sale price of real estate.]

39-5-5. [Limit on sale price of real estate.] No real property shall be sold on any execution issued out of any court in any case at law for less than two-thirds of the appraised cash value thereof, exclusive of liens and encumbrances. Laws 1856-1857, p. 66; C.L. 1865, ch. 34, § 21; Laws 1884, ch. 11, § 1; C.L. 1884, § 2171; C.L. 1897, § 3119; Code 1915, § 2202; C.S. 1929, § 46-113; 1941 Comp., § 21-205; 1953 Comp., § 24-2-5.

NMSA 1978, § 39-5-6 [Sheriff to ascertain value.]

39-5-6. [Sheriff to ascertain value.] The sheriff, between the days of levying the execution and the sale of the property, shall proceed to ascertain the cash value of such property as follows: Laws 1856-1857, p. 66; C.L. 1865, ch. 34, § 22; C.L. 1884, § 2172; C.L. 1897, § 3120; Code 1915, § 2203; C.S. 1929, § 46-114; 1941 Comp., § 21-206; 1953 Comp., § 24-2-6.

NMSA 1978, § 39-5-7 [Selection of appraisers; appraisal.]

39-5-7. [Selection of appraisers; appraisal.] For that purpose two disinterested householders of the neighborhood where the levy is made shall be selected as appraisers, one of whom shall be selected by each of the parties or their agents, or in the absence of either party or his agent, or upon the refusal of either party, after three days' notice by the sheriff to make the selection, the sheriff shall proceed to select the appraisers, who shall proceed to appraise the property according to its cash value at the time, deducting liens and encumbrances; and in case of their disagreement as to the value thereof, they shall select a like disinterested appraiser, and with his assistance shall complete the valuation, and the appraisement of any two of them shall be deemed the cash value. Laws 1856-1857, p. 66; C.L. 1865, ch. 34, § 23; C.L. 1884, § 2173; C.L. 1897, § 3121; Code 1915, § 2204; C.S. 1929, § 46-115; 1941 Comp., § 21-207; 1953 Comp., § 24-2-7.

NMSA 1978, § 39-5-8 [Appraiser failing to act.]

39-5-8. [Appraiser failing to act.] In case any appraiser shall fail to act or to complete such valuation, another shall be chosen in his stead as above provided. Laws 1856-1857, p. 66; C.L. 1865, ch. 34, § 24; C.L. 1884, § 2174; C.L. 1897, § 3122; Code 1915, § 2205; C.S. 1929, § 46-116; 1941 Comp., § 21-208; 1953 Comp., § 24-2-8.

NMSA 1978, § 39-5-9 [Schedule of property.]

39-5-9. [Schedule of property.] The sheriff shall furnish the appraisers with a schedule of the property levied on with the encumbrances made known to him, and they shall proceed to fix, and set down opposite to each tract, lot or parcel of real estate, the cash value, deducting liens and encumbrances, which schedule shall be returned to the sheriff. Laws 1856-1857, p. 68; C.L. 1865, ch. 34, § 26; C.L. 1884, § 2175; C.L. 1897, § 3123; Code 1915, § 2206; C.S. 1929, § 46-117; 1941 Comp., § 21-209; 1953 Comp., § 24-2-9.

NMSA 1978, § 39-5-10 [No duty to ascertain amount of liens.]

39-5-10. [No duty to ascertain amount of liens.] It shall not be the duty of the sheriff or appraisers to ascertain the amount of liens or encumbrances, but either party may furnish the sheriff with a list thereof, with the amount and nature of each. Laws 1856-1857, p. 66; C.L. 1865, ch. 34, § 25; C.L. 1884, § 2176; C.L. 1897, § 3124; Code 1915, § 2207; C.S. 1929, § 46-118; 1941 Comp., § 21-210; 1953 Comp., § 24-2-10.

NMSA 1978, § 39-5-11 [Oath of appraisers.]

39-5-11. [Oath of appraisers.] The appraisers shall take and subscribe an oath annexed to such appraisements, to the effect that the property mentioned in the schedule is, to the best of their judgment, worth the sums specified therein, that the same is the fair cash value thereof at the time, exclusive of liens and encumbrances; which oath the sheriff is authorized to administer and attest when taken and subscribed by the appraisers. Laws 1856-1857, p. 68; C.L. 1865, ch. 34, § 27; C.L. 1884, § 2177; C.L. 1897, § 3125; Code 1915, § 2208; C.S. 1929, § 46-119; 1941 Comp., § 21-211; 1953 Comp., § 24-2-11.

NMSA 1978, § 39-5-12 [Unsold property; return.]

39-5-12. [Unsold property; return.] When any property levied on remains unsold, it shall be the duty of the sheriff, when he returns the execution, to return the appraisement therewith, stating in his return the failure to sell, and the cause of the failure. Laws 1856-1857, p. 68; C.L. 1865, ch. 34, § 29; C.L. 1884, § 2179; C.L. 1897, § 3127; Code 1915, § 2210; C.S. 1929, § 46-121; 1941 Comp., § 21-212; 1953 Comp., § 24-2-12.

NMSA 1978, § 39-5-13 [Lien continues; alias writ.]

39-5-13. [Lien continues; alias writ.] The lien of the levy upon the property shall continue until the debt is paid, and the clerk, unless otherwise directed by the plaintiff, shall forthwith issue another execution, reciting the return of the former execution, the levy and failure to sell, and directing the sheriff to satisfy the judgment out of the property unsold, if the same is sufficient, if not, then out of any other property of the debtor, subject to execution. Laws 1856-1857, p. 68; C.L. 1865, ch. 34, § 30; C.L. 1884, § 2180; C.L. 1897, § 3128; Code 1915, § 2211; C.S. 1929, § 46-122; 1941 Comp., § 21-213; 1953 Comp., § 24-2-13.

NMSA 1978, § 39-5-14 [Reoffer of unsold property; costs; revaluation.]

39-5-14. [Reoffer of unsold property; costs; revaluation.] Whenever any property levied upon remains unsold for want of buyers, the plaintiff may cause the same to be reoffered at any time before the return day of the execution, at his cost, as often as he may direct, but in case of the sale of the property, the costs of such offer and sale shall be taxed against the defendant; each party may have one revaluation of the property, at his costs, after the first offer to sell. Laws 1856-1857, p. 68; C.L. 1865, ch. 34, § 31; C.L. 1884, § 2181; C.L. 1897, § 3129; Code 1915, § 2212; C.S. 1929, § 46-123; 1941 Comp., § 21-214; 1953 Comp., § 24-2-14.

NMSA 1978, § 39-5-15 [Foreclosure; lien claimed by deceased; making unknown heirs and devisees parties defendant.]

39-5-15. [Foreclosure; lien claimed by deceased; making unknown heirs and devisees parties defendant.] In all actions brought for the foreclosure of any real estate mortgage or deed of trust where the plaintiff alleges in his complaint that any person who is now deceased, during his lifetime, claimed a lien upon the real estate described in said mortgage or trust deed and further alleges either that there has been no administration of such decedent's estate, or that the plaintiff is unable to ascertain the names, residences and whereabouts of the heirs, devisees or legatees of such deceased person he may make such unknown heirs, legatees and devisees of any such deceased person parties defendant to said cause under the name, style and designation of "unknown heirs, devisees, or legatees, of (here insert name of deceased person), deceased"; and service of process on and notice of said suit against such defendants shall be made as provided by law and the rules of court. Laws 1937, ch. 134, § 1; 1941 Comp., § 21-216; 1953 Comp., § 24-2-16.

NMSA 1978, § 39-5-16 Foreclosure after March 15; growing crops

39-5-16. Foreclosure after March 15; growing crops In cases of mortgage foreclosures of property on which there is a growing crop and when the proceeding has been commenced after March 15 of any year, the mortgagor shall not be dispossessed by any means whatsoever until the crop has been fully harvested, and the mortgagor shall be entitled to retain the crops; provided, however, that the mortgage instrument may provide otherwise. Laws 1934 (S.S.), ch. 26, § 1; 1941 Comp., § 21-217; 1953 Comp., § 24-2-17; 1991, ch. 229, § 1.

NMSA 1978, § 39-5-17 Time for sale under judgment or decree of foreclosure; avoidance of sale

39-5-17. Time for sale under judgment or decree of foreclosure; avoidance of sale No real property shall be sold under any judgment or decree of court foreclosing any mechanic's or materialman's lien, mortgage, mortgage deed, trust deed or any other written instrument which may operate as a mortgage, until thirty days after the date of entry thereof, within which time the then owner of the real estate, his heirs, personal representatives, assigns or any junior lienholder may pay off the judgment or decree and avoid the sale by depositing in the office of the clerk of the district court in which the judgment, decree or order was entered the amount necessary to make payment thereof, including accrued interest and costs of suit. Laws 1931, ch. 149, § 1; 1941 Comp., § 21-218; 1953 Comp., § 24-2-18; Laws 1971, ch. 88, § 1.

NMSA 1978, § 39-5-18 Redemption of real property sold under judgment or decree of foreclosure; notice and hearing; redemption amount; priority of redemption rights

39-5-18. Redemption of real property sold under judgment or decree of foreclosure; notice and hearing; redemption amount; priority of redemption rights A. After sale of real estate pursuant to the order, judgment or decree of foreclosure in the district court, the real estate may be redeemed by the former defendant owner of the real estate or by any junior mortgagee or other junior lienholder whose rights were judicially determined in the foreclosure proceeding: (1) by paying to the purchaser, at any time within nine months from the date of sale, the amount paid at the sale, with interest from the date of sale at the rate of ten percent a year, together with all taxes, interest and penalties thereon, and all payments made to satisfy in whole or in part any prior lien or mortgage not foreclosed, paid by the purchaser after the date of sale, with interest on the taxes, interest, penalties and payments made on liens or mortgages at the rate of ten percent a year from the date of payment; or (2) by filing a petition for redemption in the pending foreclosure case in the district court in which the order, judgment or decree of foreclosure was entered and by making a deposit of the amount set forth in Paragraph (1) of this subsection in cash in the office of the clerk of that district court, at any time within nine months from the date of sale. Copies of the petition for redemption shall be served upon the purchaser of the real estate at the judicial foreclosure sale and upon all parties who appeared in the judicial foreclosure case; and (3) the former defendant owner shall have the first priority to redeem the real estate. If the former defendant owner does not redeem the real estate as provided in this subsection, each junior mortgagee or junior lienholder shall have a right to redeem the real estate. The order of priority of such redemption rights shall be the same priority as the underlying mortgages or liens, as set forth in the court order, judgment or decree of foreclosure or as otherwise determined by the court. All redemptions must be made within the time periods set forth in Paragraphs (1) and (2) of this subsection. B. The purchaser of real estate at a foreclosure sale, upon being served with the petition for redemption of the property, shall answer the petition within thirty days after service of the petition. C. The hearing shall be governed by the rules of civil procedure and shall be set upon the earlier of the filing of a redemption by the former defendant owner or the expiration of the period for filing a redemption. At the hearing, the judge shall determine the amount of money necessary for the redemption, which shall include the money paid at the sale and all taxes, interest, penalties and payments made in satisfaction of liens, mortgages and encumbrances. If more than one redemption is filed, the court shall also determine which redemption has priority pursuant to Subsection A of this section and which party is therefore entitled to redeem the property. At the conclusion of the hearing, the district court may order the clerk of the court to issue the certificate of redemption upon such terms and conditions as it deems just. D. As used in this section, the terms "owner", "junior mortgagee", "junior lienholder" and "purchaser" include their respective personal representatives, heirs, successors and assigns. E. For the purpose of this section, "date of sale" means the date the district court order confirming the special master's report is filed in the office of the clerk of the court. F. The nine-month redemption period provided in this section is subject to modification pursuant to the provisions of Section 39-5-19 NMSA 1978. G. A trustee's sale pursuant to a power of sale in a deed of trust as provided in the Deed of Trust Act is not a sale of real estate pursuant to a judgment or decree of a court. A redemption after a trustee's sale is governed by the Deed of Trust Act. Laws 1931, ch. 149, § 2; 1941 Comp., § 21-219; 1953 Comp., § 24-2-19; Laws 1957, ch. 109, § 1; 1977, ch. 85, § 1; 1987, ch. 61, § 24; 2007, ch. 156, § 1.

NMSA 1978, § 39-5-19 Application; shorter redemption period

39-5-19. Application; shorter redemption period This section and Section 39-5-18 NMSA 1978 do not apply to any foreclosure sale made before the effective date of this section. The parties to any such instrument may, by its terms, shorten the redemption period to not less than one month, but the district court may in such cases, upon a sufficient showing before judgment that redemption will be effected, increase the period of redemption to not to exceed nine months notwithstanding the terms of such instrument. 1953 Comp., § 24-2-19.1, enacted by Laws 1957, ch. 109, § 2; 1965, ch. 224, § 1.

NMSA 1978, § 39-5-21 [Redemption of real property sold on execution.]

39-5-21. [Redemption of real property sold on execution.] When any real estate shall be sold under a writ of execution issued out of the district court upon any money judgment against a defendant or defendants, the defendants or any one defendant, where there shall be more than one defendant, the heirs, personal representatives or assigns of said defendant or defendants may redeem the property within nine months after the sale thereof, by paying to the purchaser, his personal representatives or assigns, the amount paid with interest thereon at the rate of ten per centum per annum from the date of sale, together with any and all taxes, penalties and interest thereon paid by the purchaser, together with ten per centum interest per annum upon the amount so paid for taxes, interest and penalties from the date of payment, or by making deposit of like amount in cash in the office of the clerk of the district court out of which such writ of execution was issued, at any time within nine months from the date of sale. Laws 1931, ch. 149, § 4; 1941 Comp., § 21-221; 1953 Comp., § 24-2-21.

NMSA 1978, § 39-5-22 [Rights of purchaser upon redemption; growing crops; rents and profits; waste.]

39-5-22. [Rights of purchaser upon redemption; growing crops; rents and profits; waste.] Whenever any property shall be redeemed under the terms or provisions of any section of this act [39-5-17 to 39-5-23 NMSA 1978], the purchaser, his personal representatives or assigns shall have the growing crops upon such lands and shall not be responsible for rents and profits, but shall account only for waste. Laws 1931, ch. 149, § 5; 1941 Comp., § 21-222; 1953 Comp., § 24-2-22.

NMSA 1978, § 39-5-23 Duty to record redemption

39-5-23. Duty to record redemption A. In all cases of redemption of lands from sale pursuant to the provisions of Sections 39-5-17 through 39-5-23 NMSA 1978: (1) if the redemption is by payment to the purchaser, it is the duty of the purchaser within forty-five days of receiving payment to create an acknowledged instrument in writing evidencing the redemption; or (2) if the redemption is by making deposit in the office of the clerk of the district court upon approval of the redemption by the district judge, it is the duty of the clerk of the court to create under the seal of the court an instrument evidencing the redemption. B. It is the duty of the party redeeming to record the instrument evidencing the redemption in the office of the county clerk in the same manner as other instruments of writing affecting title to real estate. Laws 1931, ch. 149, § 6; 1941 Comp., § 21-223; 1953 Comp., § 24-2-23; 2013, ch. 214, § 12.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18539/index.doFetched: 10/20/2026