Transfers to Prefer Creditors - Voluntary Assignments

NMSA 1978 ch. 56, art. 9

in effect

NMSA 1978, § 56-9-1 [Transfers to prefer creditors; effect; exception of mortgage in good faith.]

56-9-1. [Transfers to prefer creditors; effect; exception of mortgage in good faith.] Every sale, mortgage or assignment made by debtors, and every judgment suffered by any defendant, or any act or device done or resorted to by a debtor in contemplation of insolvency and with the design to prefer one or more creditors to the exclusion in whole or in part of others, shall operate as an assignment and transfer of all the property and effects of such debtor and shall inure to the benefit of all his creditors, except as hereinafter provided in this chapter, in proportion to the amount of their respective demands, including those which are future and contingent, but nothing in this chapter shall vitiate or affect any mortgage made in good faith to secure any debt or liability created simultaneously with such mortgage, if the same be lodged for record forthwith in the office of the county clerk where the property described therein shall be situated. Laws 1889, ch. 67, § 1; C.L. 1897, § 2818; Code 1915, § 274; C.S. 1929, § 7-101; 1941 Comp., § 23-101; 1953 Comp., § 27-1-1.

NMSA 1978, § 56-9-2 [Interested persons may file suit.]

56-9-2. [Interested persons may file suit.] All such transfers as are herein declared to inure to the benefit of the creditors generally shall be subject to the control of courts of equity upon the bill [complaint] of any person interested, filed within six months after the mortgage or transfer is legally lodged for record or the delivery of the property or effects transferred. Laws 1889, ch. 67, § 2; C.L. 1897, § 2819; Code 1915, § 275; C.S. 1929, § 7-102; 1941 Comp., § 23-102; 1953 Comp., § 27-1-2.

NMSA 1978, § 56-9-3 [Parties; order for creditors to appear; publication of notice.]

56-9-3. [Parties; order for creditors to appear; publication of notice.] Any number of persons interested may unite as complainants in the bill of complaint; but it shall not be necessary to make any persons defendants, except the debtor and transferee; such bill of complaint shall state the amount of the debts of the defendant debtor, so far as known to the complainant, and in such action the court shall make an order for such of the creditors of the defendant debtor as are not joined as defendants in the bill of complaint, to appear before a master to be appointed by the court and prove their claims before a certain day to be named in the order, notice of which shall be given by advertisement in a newspaper; or if none be published in the county, then by such other mode as the court may judge best calculated to give such creditors actual notice of the order; and in addition to the advertisement in a newspaper, the court may direct publication in other modes. A creditor appearing before the master and presenting his claim shall thereby become a party to the action and be concluded by the final judgment of the court allowing or rejecting his claim. Any creditor who shall fail to appear and prove his claim agreeable to such order shall be precluded from participation in the distribution of the assets of the debtor hereinafter provided for. Laws 1889, ch. 67, § 3; C.L. 1897, § 2820; Code 1915, § 276; C.S. 1929, § 7-103; 1941 Comp., § 23-103; 1953 Comp., § 27-1-3.

NMSA 1978, § 56-9-4 [Surrender of property to receiver.]

56-9-4. [Surrender of property to receiver.] The court or judge may at any time, pending the action, and upon such terms as it shall be deemed proper, compel the transferee to surrender to a receiver of the court, all property and effects in his possession, or under his control; and it may make such orders respecting the property as courts of law are now allowed to make concerning attached property. And when it is decided that a sale, mortgage or assignment was made in contemplation of insolvency and with the design to prefer one or more creditors to the exclusion in whole or in part, of others, the court shall compel the debtor to surrender to such receiver all property and effects in his possession or under his control, except such property as is exempt from executions, to disclose the amount of his debts, the names and residence of his creditors, all offsets and defenses to any claims against him, or any other matter which shall be deemed proper; and the court shall also compel every person who shall acquire by purchase, assignment or otherwise, any property or effects from such debtor, after the suit contemplated by this chapter shall have been instituted, to surrender the same to such receiver. Laws 1889, ch. 67, § 4; C.L. 1897, § 2821; Code 1915, § 277; C.S. 1929, § 7-104; 1941 Comp., § 23-104; 1953 Comp., § 27-1-4.

NMSA 1978, § 56-9-5 [Distribution of assets; final judgment; appeal.]

56-9-5. [Distribution of assets; final judgment; appeal.] The court may make distribution of the assets on hand from time to time, and the decision of the court at the time of any distribution, allowing or disallowing any claim, shall be held final judgment, and may be appealed from as other final judgment. Laws 1889, ch. 67, § 5; C.L. 1897, § 2822; Code 1915, § 278; C.S. 1929, § 7-105; 1941 Comp., § 23-105; 1953 Comp., § 27-1-5.

NMSA 1978, § 56-9-6 [Writ of ne exeat or attachment.]

56-9-6. [Writ of ne exeat or attachment.] The court or judge may grant against such debtor a writ of ne exeat or attachment in chancery, as for contempt, when it shall be made to appear, by affidavit, that such writ or attachment is necessary to secure the surrender or disclosures provided for herein. Laws 1889, ch. 67, § 6; C.L. 1897, § 2823; Code 1915, § 279; C.S. 1929, § 7-106; 1941 Comp., § 23-106; 1953 Comp., § 27-1-6.

NMSA 1978, § 56-9-7 [Claims of creditors; verification.]

56-9-7. [Claims of creditors; verification.] The claims of creditors shall be verified by the oath of the creditor, his agent or attorney, before any portion of the assets shall be received thereon. Laws 1889, ch. 67, § 7; C.L. 1897, § 2824; Code 1915, § 280; C.S. 1929, § 7-107; 1941 Comp., § 23-107; 1953 Comp., § 27-1-7.

NMSA 1978, § 56-9-8 [Voluntary assignment; assignment not operative until execution of bond; action on bond.]

56-9-8. [Voluntary assignment; assignment not operative until execution of bond; action on bond.] In case of any voluntary assignment for the benefit of creditors, such assignment shall not become operative and the assignee shall not enter into the possession of the property assigned until he shall have executed a good and sufficient bond to the state of New Mexico in a sum to be fixed by the judge of the district court of the county of the assignor's residence, which sum shall not be less than double the value of the property assigned; which value shall be ascertained by proof satisfactory to such district judge before the approval of the bond, conditioned for the faithful performance of all his duties as such assignee, and for the payment to the parties entitled thereto, promptly and without delay, of all sums of money which may come into his hands as such assignee. And any person aggrieved may maintain an action upon the said bond in his own name, or in the name of the state, on his relation, in any district court of this state having jurisdiction. Laws 1889, ch. 67, § 8; C.L. 1897, § 2825; Code 1915, § 281; C.S. 1929, § 7-108; 1941 Comp., § 23-108; 1953 Comp., § 27-1-8.

NMSA 1978, § 56-9-9 [Failure of assignee to settle estate; suit to compel settlement.]

56-9-9. [Failure of assignee to settle estate; suit to compel settlement.] In case of any voluntary assignment, referred to in Section 56-9-8 NMSA 1978, if the assignee shall fail within twelve months to settle up the estate of his assignor and distribute the proceeds thereof among the creditors entitled thereto, any creditor aggrieved may file a bill of complaint in any district court having jurisdiction of the subject matter and the parties to compel such settlement and distribution and thereupon such suit shall proceed in the manner prescribed by this chapter for the proving of claims and the distribution of assets in cases of involuntary assignment. Laws 1889, ch. 67, § 9; C.L. 1897, § 2826; Code 1915, § 282; C.S. 1929, § 7-109; 1941 Comp., § 23-109; 1953 Comp., § 27-1-9.

NMSA 1978, § 56-9-10 [Voluntary assignments; acknowledgment and recording.]

56-9-10. [Voluntary assignments; acknowledgment and recording.] That every voluntary assignment of lands, tenements, goods, chattels, effects and credits, made by any debtor to any person in trust for the benefit of his creditors, shall be for the benefit of all the creditors of the assignor in proportion to their respective claims, except as hereinafter provided in this chapter; and every such assignment shall be proved or acknowledged and certified and recorded in the same manner as is prescribed by law in cases wherein real estate is conveyed. Laws 1889, ch. 71, § 1; C.L. 1897, § 2827; Code 1915, § 283; C.S. 1929, § 7-110; 1941 Comp., § 23-110; 1953 Comp., § 27-1-10.

NMSA 1978, § 56-9-11 [Inventory by assignee.]

56-9-11. [Inventory by assignee.] It shall be the duty of the assignee, within ten days after the execution and delivery of the deed of assignment, to file in the office of the clerk of the district court of the county in which the assignor, or if there be more than one, in which any of them shall reside, unless longer time be allowed by the judge of the court for good cause shown, an inventory of the property, effects and things assigned. Laws 1889, ch. 71, § 2; C.L. 1897, § 2828; Code 1915, § 284; C.S. 1929, § 7-111; 1941 Comp., § 23-111; 1953 Comp., § 27-1-11.

NMSA 1978, § 56-9-12 [Inventory to be accompanied by affidavit.]

56-9-12. [Inventory to be accompanied by affidavit.] The inventory shall be accompanied with an affidavit by the assignee that the same is a full and complete inventory of all such property, effects and things as far as the same has come to his knowledge. Laws 1889, ch. 71, § 3; C.L. 1897, § 2829; Code 1915, § 285; C.S. 1929, § 7-112; 1941 Comp., § 23-112; 1953 Comp., § 27-1-12.

NMSA 1978, § 56-9-13 [Appraisement.]

56-9-13. [Appraisement.] It shall be the duty of the district court, or the judge thereof in vacation, in whose clerk's office such inventory may be filed, to appoint two or more disinterested and competent persons to appraise the property, effects and things so inventoried. Laws 1889, ch. 71, § 4; C.L. 1897, § 2830; Code 1915, § 286; C.S. 1929, § 7-113; 1941 Comp., § 23-113; 1953 Comp., § 27-1-13.

NMSA 1978, § 56-9-14 [Oath of appraisers.]

56-9-14. [Oath of appraisers.] The appraisers, having first taken an oath or affirmation before some person having authority to administer oaths, to discharge their duties with fidelity, shall forthwith proceed to make such appraisement. Laws 1889, ch. 71, § 5; C.L. 1897, § 2831; Code 1915, § 287; C.S. 1929, § 7-114; 1941 Comp., § 23-114; 1953 Comp., § 27-1-14.

NMSA 1978, § 56-9-15 [Filing of appraisement and oath.]

56-9-15. [Filing of appraisement and oath.] The appraisers shall file the appraisement and their oath of office in the office of the clerk of the district court, within five days after they shall have completed the same. Laws 1889, ch. 71, § 6; C.L. 1897, § 2832; Code 1915, § 288; C.S. 1929, § 7-115; 1941 Comp., § 23-115; 1953 Comp., § 27-1-15.

NMSA 1978, § 56-9-16 [Compensation of appraisers.]

56-9-16. [Compensation of appraisers.] The appraisers shall receive four dollars [($4.00)] per day for their necessary attendance and services. Laws 1889, ch. 71, § 7; C.L. 1897, § 2833; Code 1915, § 289; C.S. 1929, § 7-116; 1941 Comp., § 23-116; 1953 Comp., § 27-1-16.

NMSA 1978, § 56-9-17 [Additional property; appraisement.]

56-9-17. [Additional property; appraisement.] If, after making the first inventory, any other property, effects or things conveyed by the deed of assignment, shall come to the possession or knowledge of the assignee, his duty in relation thereto, and the duty of the court or judge and the appraisers shall be the same as required of them by the preceding section [sections]. Laws 1889, ch. 71, § 8; C.L. 1897, § 2834; Code 1915, § 290; C.S. 1929, § 7-117; 1941 Comp., § 23-117; 1953 Comp., § 27-1-17.

NMSA 1978, § 56-9-18 [Statement of assignee; bond.]

56-9-18. [Statement of assignee; bond.] The assignee, his agent or attorney, at the time of the execution and delivery of the deed of assignment, shall make a statement in writing, verified by affidavit, setting forth the general nature and full value of the estate and effects assigned, which statement shall be filed with the deed of assignment for record, and the assignee shall, within five days after the filing of such statement, give bond with at least two good and sufficient securities to be approved by the court, or judge or clerk thereof in vacation, in double the amount of the estate and effects assigned, and if the appraised value of such estate and effects, when appraised, shall be greater than the value given in such statement, or if the securities in such should in any way become impaired or insufficient, the assignee shall, at the time of filing the appraisement, give another bond with at least two good and sufficient securities to be approved in like manner, in double the value of the estate and effects assigned. Laws 1889, ch. 71, § 9; C.L. 1897, § 2835; Code 1915, § 291; C.S. 1929, § 7-118; 1941 Comp., § 23-118; 1953 Comp., § 27-1-18.

NMSA 1978, § 56-9-19 [Conditions of bond.]

56-9-19. [Conditions of bond.] The bond shall be taken in the name of the state of New Mexico, and the conditions shall be as follows: The conditions of this obligation are such that if the above bound assignee of....... shall, in all things, discharge his duty as assignee of....... aforesaid, and faithfully execute the trust confided to him, then the above obligation to be void, otherwise to remain in full force. Laws 1889, ch. 71, § 10; C.L. 1897, § 2836; Code 1915, § 292; C.S. 1929, § 7-119; 1941 Comp., § 23-119; 1953 Comp., § 27-1-19.

NMSA 1978, § 56-9-20 [Recording of bond; filing copies of bond and other papers with county clerk.]

56-9-20. [Recording of bond; filing copies of bond and other papers with county clerk.] The bond shall be filed in the office of the clerk of the court in which the inventory is filed and shall be by the clerk recorded in a book kept by him for such purpose, and labeled, "Assignments," and presented, if taken by him in vacation, to the district court at its next regular term. A certified copy of such bond, deed of assignment, statement and inventory shall also be filed for record in the office of the county clerk of the same county, as soon as such certified copies can be obtained from the clerk of the district court. Laws 1889, ch. 71, § 11; C.L. 1897, § 2837; Code 1915, § 293; C.S. 1929, § 7-120; 1941 Comp., § 23-120; 1953 Comp., § 27-1-20.

NMSA 1978, § 56-9-21 [Approval or rejection of bonds taken in vacation.]

56-9-21. [Approval or rejection of bonds taken in vacation.] The district court or judge shall approve or reject the bonds taken by the clerk in vacation, and the clerk of the district court shall enter the approval or rejection on the record. Laws 1889, ch. 71, § 12; C.L. 1897, § 2838; Code 1915, § 294; C.S. 1929, § 7-121; 1941 Comp., § 23-121; 1953 Comp., § 27-1-21.

NMSA 1978, § 56-9-22 [Failure to give additional bond; revocation of authority.]

56-9-22. [Failure to give additional bond; revocation of authority.] If the bond be rejected the district court or judge thereof shall order the assignee to give another bond, with sufficient security to be approved by the court, and if he fail to give such bond within such time as the court or judge thereof shall direct, not exceeding twenty days, his authority further to act as assignee shall be deemed revoked. Laws 1889, ch. 71, § 13; C.L. 1897, § 2839; Code 1915, § 295; C.S. 1929, § 7-122; 1941 Comp., § 23-122; 1953 Comp., § 27-1-22.

NMSA 1978, § 56-9-23 [Old bond is valid until new bond approved.]

56-9-23. [Old bond is valid until new bond approved.] Such bond shall be valid until such new bond be given and approved, notwithstanding its rejection by the court, and such new bond, when approved, shall relate back and operate from the date of assignment. Laws 1889, ch. 71, § 14; C.L. 1897, § 2840; Code 1915, § 296; C.S. 1929, § 7-123; 1941 Comp., § 23-123; 1953 Comp., § 27-1-23.

NMSA 1978, § 56-9-24 [Suit on bond.]

56-9-24. [Suit on bond.] Any person, injured by a breach of the condition of the bond, may sue thereon in the name of the state for his use, and the damages shall be assessed as on bonds with collateral conditions. Laws 1889, ch. 71, § 15; C.L. 1897, § 2841; Code 1915, § 297; C.S. 1929, § 7-124; 1941 Comp., § 23-124; 1953 Comp., § 27-1-24.

NMSA 1978, § 56-9-25 [Statement of accounts; time of making; dismissal for failure to make.]

56-9-25. [Statement of accounts; time of making; dismissal for failure to make.] Every assignee shall exhibit on oath a statement of the accounts of the trust, with proper vouchers, to the district court at the first regular term after the execution of the assignment unless for good cause postponed, and shall file a like statement at least every three months thereafter for the inspection of the judge, and if by the judge found correct and proper, to be by him approved; such statements to be so made until assigned estate is fully settled. And if such assignee shall fail to make such settlement as herein provided for within the time mentioned, then on the application of any person interested, the court or judge thereof shall order a citation to issue to such assignee requiring him to appear before him at his chambers within a time named therein and exhibit on oath a statement of his accounts, and if said assignee shall neglect and fail to exhibit such accounts within the time named in such citation, the judge shall, on motion, unless for good cause shown, dismiss said assignee from his trust and enter an order that he pay all costs of the proceedings. Laws 1889, ch. 71, § 16; C.L. 1897, § 2842; Code 1915, § 298; C.S. 1929, § 7-125; 1941 Comp., § 23-125; 1953 Comp., § 27-1-25.

NMSA 1978, § 56-9-26 [Notice of filing accounts.]

56-9-26. [Notice of filing accounts.] The court or judge thereof shall, by such order as the circumstances of the case may require, direct the clerk to give notice of the exhibition and filing of such accounts, for such time and in some newspaper of general circulation within the county wherein such assignment is made and recorded, and that such accounts will be allowed by the court or judge thereof in vacation, at a certain time, to be stated in such notice, unless good cause to the contrary is shown. Laws 1889, ch. 71, § 17; C.L. 1897, § 2843; Code 1915, § 299; C.S. 1929, § 7-126; 1941 Comp., § 23-126; 1953 Comp., § 27-1-26.

NMSA 1978, § 56-9-27 [Advertising paid by assignee; credit.]

56-9-27. [Advertising paid by assignee; credit.] The expense of advertising shall be paid by the assignee at the time of exhibiting his account, and shall be passed to his credit in such account. Laws 1889, ch. 71, § 18; C.L. 1897, § 2844; Code 1915, § 300; C.S. 1929, § 7-127; 1941 Comp., § 23-127; 1953 Comp., § 27-1-27.

NMSA 1978, § 56-9-28 [Adjustment and allowance of demands.]

56-9-28. [Adjustment and allowance of demands.] The assignee shall appoint a day, within three months after the date of the assignment, and a place, which shall be the county seat of the county where the inventory is filed, or such other place in said county most convenient to all the parties in interest where any court of record may be lawfully held, when and where he will proceed publicly to adjust and allow demands against the estate and effects of the assignor. Laws 1889, ch. 71, § 19; C.L. 1897, § 2845; Code 1915, § 301; C.S. 1929, § 7-128; 1941 Comp., § 23-128; 1953 Comp., § 27-1-28.

NMSA 1978, § 56-9-29 [Notice of adjusting and allowing demands; publication; procedure; claims not presented.]

56-9-29. [Notice of adjusting and allowing demands; publication; procedure; claims not presented.] The assignee shall give notice of the time and place of adjusting and allowing demands against the estate of his assignor, by advertisement published in some newspaper printed in the county, or if there be none, in the one nearest the place where the inventory is filed, for four weeks successively, the last insertion to be at least one week before the appointed day, and also, whenever the residence of any of the creditors is known to him, by letters addressed to such creditors at their known or usual place of abode, at least four weeks before the appointed day. The assignee shall attend at the place designated in said notice, in person, on said day, and shall remain in attendance at said place on said day, and during two consecutive days thereafter, and shall commence the adjustment and allowance of demands against the trust fund at nine o'clock a.m. and continue the same until five o'clock p.m. of each of the said three days; and all creditors who, after being notified as aforesaid, shall not attend at the place designated during the said term, and lay before the assignee the nature and amount of their demands, shall be precluded of any benefit of said estate, but the hearing on any demand presented at the time may be continued, for good cause shown, to such time as is deemed right: provided, that any creditor who shall fail to lay his claim before said assignee during the said term on account of sickness, absence from the state, or any other good cause, may, at any time before the declaration of the final dividend, file and prove up his claim, and the same may be allowed, and the remaining dividends paid thereon as in the case of other allowed claims. Laws 1889, ch. 71, § 20; C.L. 1897, § 2846; Code 1915, § 302; C.S. 1929, § 7-129; 1941 Comp., § 23-129; 1953 Comp., § 27-1-29.

NMSA 1978, § 56-9-30 [Assignee may administer oaths to witnesses.]

56-9-30. [Assignee may administer oaths to witnesses.] The assignee shall have power to administer all necessary oaths to debtors, creditors and witnesses, and may examine them on oath, touching any claim exhibited to him for allowance. Laws 1889, ch. 71, § 21; C.L. 1897, § 2847; Code 1915, § 303; C.S. 1929, § 7-130; 1941 Comp., § 23-130; 1953 Comp., § 27-1-30.

NMSA 1978, § 56-9-31 [Rejection of claims.]

56-9-31. [Rejection of claims.] Should the assignee reject any claim or demand against the estate, he shall indorse on the back of said claim or demand the word, "Rejected," giving the date of said rejection and sign his name as such assignee thereto. Laws 1889, ch. 71, § 22; C.L. 1897, § 2848; Code 1915, § 304; C.S. 1929, § 7-131; 1941 Comp., § 23-131; 1953 Comp., § 27-1-31.

NMSA 1978, § 56-9-32 [Rejected claim; right to bring action; limitation.]

56-9-32. [Rejected claim; right to bring action; limitation.] If, within thirty days after the same is rejected, the party owning said claim does not prosecute his action against the assignee in a court of competent jurisdiction, a recovery upon said claim or demand shall be forever barred. If the plaintiff's cause of action be dismissed at the instance of the defendant other than on its merits, the plaintiff shall have thirty days from the date of such dismissal to bring a new suit. Laws 1889, ch. 71, § 23; C.L. 1897, § 2849; Code 1915, § 305; C.S. 1929, § 7-132; 1941 Comp., § 23-132; 1953 Comp., § 27-1-32.

NMSA 1978, § 56-9-33 [Judgments in favor of claimant certified to assignee.]

56-9-33. [Judgments in favor of claimant certified to assignee.] All judgments rendered in favor of any claimant in the district court, by virtue of the provisions of this chapter, shall be certified by the clerk thereof to the assignee, who shall allow the same and class it as a valid claim against the estate. Laws 1889, ch. 71, § 24; C.L. 1897, § 2850; Code 1915, § 306; C.S. 1929, § 7-133; 1941 Comp., § 23-133; 1953 Comp., § 27-1-33.

NMSA 1978, § 56-9-34 [Claims of assignee; presentation to court; temporary assignee; allowance or rejection of claim.]

56-9-34. [Claims of assignee; presentation to court; temporary assignee; allowance or rejection of claim.] If the assignee shall have a demand against the assignor which he desires to have allowed, he may present a petition to the district court or to the judge thereof in vacation, stating the particulars of his demand and the amount thereof, verified by affidavit, and thereupon such court, or the judge thereof in vacation, shall appoint some suitable person to act temporarily as the assignee of such estate for the purpose of hearing and passing upon such demand. The assignee appointed shall take an oath that he will faithfully discharge the trust confided to him, and shall proceed to examine the claim, and if same be found to be correct in whole or in part, he shall allow the amount found to be due, and report his action in the premises to the proper court at the next term thereof, or to the judge of said court in vacation; and the court or judge, as the case may be, shall make an order directing the sum allowed to be paid to the claimant as other allowances are paid; and in case such demand or demands shall have been rejected by the temporary assignee, such proceedings may be had as designated in Sections 56-9-31 to 56-9-33 NMSA 1978. Laws 1889, ch. 71, § 25; C.L. 1897, § 2851; Code 1915, § 307; C.S. 1929, § 7-134; 1941 Comp., § 23-134; 1953 Comp., § 27-1-34.

NMSA 1978, § 56-9-35 [Failure of assignee to file inventory or give bond; citation to show cause.]

56-9-35. [Failure of assignee to file inventory or give bond; citation to show cause.] Whenever it shall be made to appear to the court having jurisdiction, or the judge of the proper district court in vacation, that any assignee has neglected and refused, when required by law, to file a full and true inventory or to give a bond as required by this chapter, the court, or judge thereof in vacation, shall issue a citation to said assignee to appear before said judge at a time and place within his judicial district therein specified, to show cause why he should not be dismissed from his trust. Laws 1889, ch. 71, § 26; C.L. 1897, § 2852; Code 1915, § 308; C.S. 1929, § 7-135; 1941 Comp., § 23-135; 1953 Comp., § 27-1-35.

NMSA 1978, § 56-9-36 [Dismissal of assignee.]

56-9-36. [Dismissal of assignee.] On the return of the citation, the court, or judge thereof, may require the assignee to file an inventory and to give a bond, with good and sufficient security, at any time, as he may deem reasonable, or may proceed at once to dismiss such assignee from his trust. Laws 1889, ch. 71, § 27; C.L. 1897, § 2853; Code 1915, § 309; C.S. 1929, § 7-136; 1941 Comp., § 23-136; 1953 Comp., § 27-1-36.

NMSA 1978, § 56-9-37 [Insolvency or removal of security on bond.]

56-9-37. [Insolvency or removal of security on bond.] The like proceedings as are prescribed in the last two preceding sections [56-9-35, 56-9-36 NMSA 1978] may be had whenever it shall appear to the court or judge that any person who shall have become security for any assignee in any bond given for due execution of his trust, has or is likely to become insolvent, or has removed or is about to remove from the state. Laws 1889, ch. 71, § 28; C.L. 1897, § 2854; Code 1915, § 310; C.S. 1929, § 7-137; 1941 Comp., § 23-137; 1953 Comp., § 27-1-37.

NMSA 1978, § 56-9-38 [Appointment of new assignee.]

56-9-38. [Appointment of new assignee.] The court, or judge thereof, shall have power to appoint an assignee in all cases of dismissal of an assignee from his trust, and like bond and security shall be required and given by the assignee so appointed as are required and given by an assignee appointed by an assignor. Laws 1889, ch. 71, § 29; C.L. 1897, § 2855; Code 1915, § 311; C.S. 1929, § 7-138; 1941 Comp., § 23-138; 1953 Comp., § 27-1-38.

NMSA 1978, § 56-9-39 [Dismissal of assignee; delivery of papers, moneys and effects.]

56-9-39. [Dismissal of assignee; delivery of papers, moneys and effects.] When any assignee shall be dismissed from his trust, the court or judge shall order all the books, papers, effects, moneys and evidences of debt to be forthwith delivered to his successor in trust, or to such other persons as the court or judge shall appoint to receive the same for the time being. Laws 1889, ch. 71, § 30; C.L. 1897, § 2856; Code 1915, § 312; C.S. 1929, § 7-139; 1941 Comp., § 23-139; 1953 Comp., § 27-1-39.

NMSA 1978, § 56-9-40 [Sale of property; order of court; bond of assignee.]

56-9-40. [Sale of property; order of court; bond of assignee.] The district court, or the judge thereof in vacation, shall make an order for the sale of all the real and personal estate conveyed by any deed of assignment, either for cash in hand or upon reasonable credit, and upon such other terms and notice as shall appear to the court or judge to be most advantageous to all the parties in interest, and shall by order, direct the nature of the security to be taken at sales made by assignees under this chapter. Before any sale of such real estate shall be made, the assignee shall give bond with at least two good securities, to be approved by the court, or judge thereof in vacation, in an amount equal to the value of the real estate to be sold, conditioned that the said assignee will faithfully make the same under such order, and duly account for the proceeds thereof under the provisions contained in this chapter. Laws 1889, ch. 71, § 31; C.L. 1897, § 2857; Code 1915, § 313; C.S. 1929, § 7-140; 1941 Comp., § 23-140; 1953 Comp., § 27-1-40.

NMSA 1978, § 56-9-41 [Time for payment of claims; notice; refusal to pay; penalty; dismissal.]

56-9-41. [Time for payment of claims; notice; refusal to pay; penalty; dismissal.] As soon as practicable and not exceeding thirty days after a time for allowance of demands had under this chapter, provided sufficient money shall have then come into his hands, the assignee or assignees shall pay upon the demands allowed, according to their right, as much as the means on hand will permit after reserving enough for proper fees, costs, expenses and demands, including expenses of litigation then pending, and as often thereafter as a dividend of five per centum can be paid upon the demands allowed as aforesaid, the assignee or assignees shall give notice thereof for publication for one week in the same newspaper in which was published the notice for allowance of demands, or in such other newspaper as the court or judge thereof may direct; and if such assignee or assignees shall neglect or refuse to make payment out of such trust fund, as in this section required, for more than three days after the same have become due and have been demanded by the person entitled thereto, his agent or attorney, or if he or they shall in any way neglect or refuse to comply with the provisions of this section, he or they shall for every such neglect or refusal, forfeit and pay to the person or persons aggrieved, five per centum per month interest on such sum as such person or persons were entitled to at the time of such demand, to be recovered by motion in the court having jurisdiction of said assignment; and any judgment rendered by said court on the hearing of said motion shall be against said assignee or assignees and his or their securities on their trust provided for in this chapter, and such assignee or assignees shall in addition to such forfeiture, be subject to be dismissed from his or their trust by said court for such neglect and refusal and on motion and citation for that purpose. Laws 1889, ch. 71, § 32; C.L. 1897, § 2858; Code 1915, § 314; C.S. 1929, § 7-141; 1941 Comp., § 23-141; 1953 Comp., § 27-1-41.

NMSA 1978, § 56-9-42 [Assignee to give information as to condition of estate.]

56-9-42. [Assignee to give information as to condition of estate.] Every assignee, upon the reasonable request of any person entitled to any demand allowed, or of his agent, shall exhibit to such person or agent the condition of the assets of the assignment and give him all reasonable information concerning the same. Laws 1889, ch. 71, § 33; C.L. 1897, § 2859; Code 1915, § 315; C.S. 1929, § 7-142; 1941 Comp., § 23-142; 1953 Comp., § 27-1-42.

NMSA 1978, § 56-9-43 [Petition for relief against assignee; citation; procedure.]

56-9-43. [Petition for relief against assignee; citation; procedure.] Upon petition in behalf of any such person to the district court, or judge thereof in vacation, showing good cause therefor, verified by affidavit, such court or judge shall cause any assignee to be cited to appear before the court or judge at such time as may be designated, to answer the allegation of such petition and to do and abide such order as shall be made by such court or judge in the premises, and for the purpose of preventing multiplicity of petitions or other proceedings, two or more may join in seeking the relief demanded by each, verifying their respective causes of complaint: provided, the relief sought by each are not antagonistic to each other, and upon the hearing the court or judge shall make such order as shall be deemed fit and lawful in the premises for enforcing the provisions of this chapter. Laws 1889, ch. 71, § 34; C.L. 1897, § 2860; Code 1915, § 316; C.S. 1929, § 7-143; 1941 Comp., § 23-143; 1953 Comp., § 27-1-43.

NMSA 1978, § 56-9-44 [Exempt property not included in assignment.]

56-9-44. [Exempt property not included in assignment.] All property, both real and personal, exempt from execution under the laws of this state shall not be conveyed by the deed of assignment, and if enumerated therein shall not pass to the assignee, but shall be reserved for the benefit of the assignor, or his family, to be set off and appraised by the appraiser mentioned in the first part of this chapter. Laws 1889, ch. 71, § 35; C.L. 1897, § 2861; Code 1915, § 317; C.S. 1929, § 7-144; 1941 Comp., § 23-144; 1953 Comp., § 27-1-44.

NMSA 1978, § 56-9-45 [Prior liens not affected.]

56-9-45. [Prior liens not affected.] That nothing herein contained shall be so construed as to deprive any person of the benefit of any lien that may have attached to any of the assignor's property, either at law or in equity, prior to assignment. Laws 1889, ch. 71, § 36; C.L. 1897, § 2862; Code 1915, § 318; C.S. 1929, § 7-145; 1941 Comp., § 23-145; 1953 Comp., § 27-1-45.

NMSA 1978, § 56-9-46 [Attachment not to issue after assignment.]

56-9-46. [Attachment not to issue after assignment.] No process by attachment shall issue on behalf of any creditor of the assignor after such assignment has been duly made, as in this chapter contemplated, until a court of competent jurisdiction shall have first pronounced the assignment void, ab initio by proper suit or action brought by one or more creditors for that purpose, in which case, after the bill is filed and proper service is had, the court, or judge in vacation, shall fix the time for making up the issues, and render a final decree as soon as practicable. Laws 1889, ch. 71, § 37; C.L. 1897, § 2863; Code 1915, § 319; C.S. 1929, § 7-146; 1941 Comp., § 23-146; 1953 Comp., § 27-1-46.

NMSA 1978, § 56-9-47 [Preferences inure to benefit of all creditors alike.]

56-9-47. [Preferences inure to benefit of all creditors alike.] Should any preference be made in favor of any creditor, other than in this chapter provided, such preference shall inure to the benefit of all creditors alike. Laws 1889, ch. 71, § 38; C.L. 1897, § 2864; Code 1915, § 320; C.S. 1929, § 7-147; 1941 Comp., § 23-147; 1953 Comp., § 27-1-47.

NMSA 1978, § 56-9-48 [Discharge; application by assignee; notice; contents of petition.]

56-9-48. [Discharge; application by assignee; notice; contents of petition.] When any assignee becomes satisfied that it is no longer advantageous to the creditors of his assignor to keep the assignment open, he may apply to the district court for a discharge from his trust, upon a notice of his intention to make such application, stating the time thereof, which notice shall be published in the newspaper aforesaid, for at least four weeks next before such time, at which time he may file his petition in said court for such discharge; which petition, verified by his affidavit, shall set forth the disposition made of the assets of the assignment to him; what portion of them remains on hand, and their condition; the amount realized from the assets; the particular disposition of such amount; the demands allowed particularly, with their respective amounts, and owners' names, and the sums paid on each, with an offer to deliver into the charge of the court what remains of the assets, and the evidence thereof, and accompanied by all vouchers therewith connected. Laws 1889, ch. 71, § 39; C.L. 1897, § 2865; Code 1915, § 321; C.S. 1929, § 7-148; 1941 Comp., § 23-148; 1953 Comp., § 27-1-48.

NMSA 1978, § 56-9-49 [Hearing and determination of application for discharge.]

56-9-49. [Hearing and determination of application for discharge.] If no person interested shall, within one week after filing such petition, file written objections to such discharge, accompanied by specific reasons, the court may refer the application to some competent and reliable person to examine the merits of the application and report to the court, with all convenient speed thereon; and, upon the filing of such report, the court shall make such further order in the premises as it shall adjudge right, or the court or judge thereof may hear and determine such application without reference, and may discharge said assignee from all further duty or obligation under the assignment; and thereupon, shall order such assignee to deliver into the charge and custody of the court such portion of the assets and evidences thereof as remain in his hands, where they shall be kept with all papers connected with such assignment, subject to the future control and disposition of the court. Laws 1889, ch. 71, § 40; C.L. 1897, § 2866; Code 1915, § 322; C.S. 1929, § 7-149; 1941 Comp., § 23-149; 1953 Comp., § 27-1-49.

NMSA 1978, § 56-9-50 [Appeals from final judgment.]

56-9-50. [Appeals from final judgment.] Appeals may be taken from the final judgment of the court, in the same manner as now provided by law, for appeals or writs of error in ordinary cases. Laws 1889, ch. 71, § 41; C.L. 1897, § 2867; Code 1915, § 323; C.S. 1929, § 7-150; 1941 Comp., § 23-150; 1953 Comp., § 27-1-50.

NMSA 1978, § 56-9-51 [Bad or doubtful debts; sale or compromise; release of rights; report; notice; objections.]

56-9-51. [Bad or doubtful debts; sale or compromise; release of rights; report; notice; objections.] Whenever it may appear to the best interest of the estate assigned, the court, or judge thereof in vacation may make an order directing the assignee to sell, compound or compromise all bad or doubtful debts upon such terms and conditions as appear proper and most beneficial to the estate; and in like manner the court, or judge thereof in vacation, may make an order directing the assignee to release and discharge any vested, contingent or possible right or interest in or to any estate or effects assigned, upon such terms and conditions as the court, or judge thereof in vacation, may deem proper and just for the best interest of the estate. The assignee shall report his proceedings under this section to the court, or judge in vacation; and if in vacation, he shall notify the creditors by publication in the newspaper aforesaid for at least two weeks, the last insertion to be not less than ten days prior to the time of the hearing on said report, which notice shall state the object of said report and when and where the same will be heard, and upon a hearing thereof, the court, or judge in vacation, may approve or disapprove the same as the facts and circumstances may warrant: and provided, that any creditor may file his objections to said report on or before the date fixed by the notice, and such objection shall be heard and determined without delay, and nothing in this section authorized to be done by the assignee shall be final until the approval of the court as provided in this chapter. Laws 1889, ch. 71, § 42; C.L. 1897, § 2868; Code 1915, § 324; C.S. 1929, § 7-151; 1941 Comp., § 23-151; 1953 Comp., § 27-1-51.

NMSA 1978, § 56-9-52 [Compensation of assignee and counsel.]

56-9-52. [Compensation of assignee and counsel.] The fees and commissions to which the assignee may be entitled for services performed by him in the execution of his trust shall be fixed and allowed by the court, or judge thereof in vacation, for such amount, at such times and in such manner as the court or judge may direct, to be applied out of the trust funds in the hands of the assignee. In like manner the court shall allow counsel for the assignee reasonable compensation for professional services necessarily performed for and on behalf of the assignee in the execution of his trust. Laws 1889, ch. 71, § 43; C.L. 1897, § 2869; Code 1915, § 325; C.S. 1929, § 7-152; 1941 Comp., § 23-152; 1953 Comp., § 27-1-52.

NMSA 1978, § 56-9-53 [Compensation of assignee as counsel.]

56-9-53. [Compensation of assignee as counsel.] In case the assignee should be an attorney-at-law, in active practice, and performs the duties of assignee and counsel in the protection and execution of the trust, he shall be allowed by the court such compensation, in his capacity as such counsel, together with a reasonable allowance as assignee, at such times, in such manner and in such amounts as the court under all the circumstances may deem just and reasonable. Laws 1889, ch. 71, § 44; C.L. 1897, § 2870; Code 1915, § 326; C.S. 1929, § 7-153; 1941 Comp., § 23-153; 1953 Comp., § 27-1-53.

NMSA 1978, § 56-9-54 [Permission to assign moneys due from state or subdivision; procedure and limitations.]

56-9-54. [Permission to assign moneys due from state or subdivision; procedure and limitations.] Assignments of moneys due or to become due from the state of New Mexico or from any municipal corporation, county or political subdivision or agency thereof under the terms of any construction, improvement, maintenance or repair contract or contracts for equipment or supplies shall be permitted subject to the following limitations and restrictions: A. the assignment must, subject to Subparagraph D hereof, be to a bank, trust company or other financing institution; B. the contract under which such moneys shall be due or become due must provide for payments to the assignor aggregating $500.00 or more; C. the contract must not contain a provision prohibiting such assignment; D. unless otherwise expressly permitted by the contract, such assignment shall cover all amounts payable under such contract and not already paid, shall not be made to more than one party, and shall not be subject to further assignment except that any such assignment may be made to one party as agent or trustee for two or more parties participating in such financing; E. notice shall be given as required by Section 2 [56-9-55 NMSA 1978] of this act. 1941 Comp., § 23-154, enacted by Laws 1947, ch. 22, § 1; 1953 Comp., § 27-1-54.

NMSA 1978, § 56-9-55 [Written notices of assignment required.]

56-9-55. [Written notices of assignment required.] In the event of such assignment, the assignee thereof shall file written notice of the assignment, together with a true copy of the instrument of assignment: A. with the officer of the state, municipal corporation, county, political subdivision or agency who will make the payment under the contract assigned; and B. with the officer who executed the contract on behalf of the state or such municipal corporation, county, political subdivision or agency; and C. with the surety or sureties upon the bond or bonds, if any, given to secure the performance of such contract. 1941 Comp., § 23-155, enacted by Laws 1947, ch. 22, § 2; 1953 Comp., § 27-1-55.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18559/index.doFetched: 10/20/2026