Any person holding a judgment lien on any real estate situated in this state may subject said real estate to the payment of his judgment by a foreclosure suit in any court of competent jurisdiction, such suit to be instituted and prosecuted in the same manner as ordinary suits for the foreclosure of mortgages, and the sale thereunder to be held in the same manner and subject to the same rights of redemption as in sales held under mortgage foreclosure decrees.
History: Laws 1933, ch. 7, § 1; 1941 Comp., § 21-114; 1953 Comp., § 24-1-22.
ANNOTATIONSCross references. — For sales under execution and foreclosure, see 39-5-1 NMSA 1978 et seq.
Constitutionality. — Allegation that Laws 1933, ch. 7 (39-4-13 to 39-4-16 NMSA 1978) were unconstitutional on the ground that its title did not clearly express the subject of the bill and that it embraced more than one subject, contrary to the provisions of N.M. Const., art. IV, § 16, was without merit. Ballew v. Denson, 1958-NMSC-002, 63 N.M. 370, 320 P.2d 382.
Enactment of procedure by reference valid. — Laws 1933, ch. 7 (39-4-13 to 39-4-16 NMSA 1978) does not contravene N.M. Const., art. IV, § 18 by attempting to revise, amend and extend substantive law by reference; the act grants an optional procedure for the enforcement of judgment liens, and procedural law may be adopted by reference. Ballew v. Denson, 1958-NMSC-002, 63 N.M. 370, 320 P.2d 382.
Judgment lien on real estate is right established by statute and did not exist at common law. Curtis Mfg. Co. v. Barela, 1966-NMSC-112, 76 N.M. 392, 415 P.2d 361.
Substantive and remedial rights. — Holder of a judgment lien on real estate has two or more rights, i.e., the right to the lien, which is a sort of substantive or property right, and a right to the remedies to enforce the lien. Pugh v. Heating & Plumbing Fin. Corp., 1945-NMSC-031, 49 N.M. 234, 161 P.2d 714.
Manner of conducting ordinary suits for mortgage foreclosures. — There are no statutes prescribing the manner in which ordinary suits for the foreclosure of mortgages are to be conducted, so the reference in this section to the manner of conducting such suits must be to the general practice in prosecuting all suits, both legal and equitable, under our Rules of Civil Procedure. Armstrong v. Csurilla, 1991-NMSC-081, 112 N.M. 579, 817 P.2d 1221.
Lien on equitable interest. — As neither this section nor 39-1-6 NMSA 1978 makes any distinction between legal and equitable interests in real estate, both sections allow a judgment lien to attach to an equitable interest. Mutual Bldg. & Loan Ass'n v. Collins, 1973-NMSC-113, 85 N.M. 706, 516 P.2d 677.
Both 39-1-6 NMSA 1978 and this section broadly refer to "real estate" of the judgment debtor and, therefore, are broad enough to include equitable interests within their purview. Marks v. City of Tucumcari, 1979-NMSC-045, 93 N.M. 4, 595 P.2d 1199.
Interest retained by vendor under executory contract of sale is personalty and not real estate. Marks v. City of Tucumcari, 1979-NMSC-045, 93 N.M. 4, 595 P.2d 1199.
Wife's moiety in community real property is subject to foreclosure under a judgment lien against the wife arising from a tort during the marriage resulting from the negligent operation of a separately owned automobile. McDonald v. Senn, 1949-NMSC-020, 53 N.M. 198, 204 P.2d 990.
Judgment lien and judgment. — Judgment lien and judgment, though related, are separate rights, and thus are separate causes of action. Curtis Mfg. Co. v. Barela, 1966-NMSC-112, 76 N.M. 392, 415 P.2d 361.
Cross claim to enforce a judgment lien. — Dismissal of a cross claim to enforce a judgment lien against real estate was not a bar to suit on the small claims court judgment, as the issue in the cross claim was the judgment lien and the small claims court judgment was not an issue therein. Curtis Mfg. Co. v. Barela, 1966-NMSC-112, 76 N.M. 392, 415 P.2d 361.
Irregularities ratified by debtor. — Where debtor was in possession at the time and was personally served with process but allowed judgment to go against him by default, remaining in possession as tenant under lease from purchaser at special master's sale, the court did not lack jurisdiction because of alleged irregularities in judgment; as debtor made no objection to foreclosure proceedings and outstanding judgments against him were partially reduced from proceeds of sale, he was deemed to have ratified the allegedly irregular proceedings. Ballew v. Denson, 1958-NMSC-002, 63 N.M. 370, 320 P.2d 382.
Lien extinguished. — A judgment lien was extinguished and nonenforceable under a counterclaim in a suit to quiet title, where the time within which execution would normally issue on judgment lien had long expired and no steps for enforcement of the judgment had been taken. Pugh v. Heating & Plumbing Fin. Corp., 1945-NMSC-031, 49 N.M. 234, 161 P.2d 714.
Sales by Internal Revenue Service distinguished. — Sales on execution or foreclosure are sales conducted under the auspices of the courts following entry of a judgment, order or decree, unlike sales conducted by the Internal Revenue Service after levy and seizure. Henderson v. Gibbany, 1966-NMSC-172, 76 N.M. 674, 417 P.2d 807.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.
49 C.J.S. Judgments § 502.