In any action brought by a joint tenant, or tenant in common, against a cotenant, he shall be required to prove an actual ouster or act equivalent thereto.
History: C.L. 1897, § 2685 (256), added by Laws 1907, ch. 107, § 1 (256); Code 1915, § 4366; C.S. 1929, § 105-1807; 1941 Comp., § 25-808; 1953 Comp., § 22-8-8.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Ouster by executing warranty deed. — The act of a part of the tenants in common in executing a deed with covenants of warranty, purporting to convey the entire estate, is an ouster of the other cotenants. Baker v. de Armijo, 1912-NMSC-046, 17 N.M. 383, 128 P. 73; Neher v. Armijo, 1898-NMSC-005, 9 N.M. 325, 54 P. 236, overruled on other grounds by De Bergere v. Chaves, 1908-NMSC-006, 14 N.M. 352, 93 P. 762.
Constructive ouster by divorced spouse. — If one of the parties in a divorce case remains in possession of the community residence between the date of the divorce and the date of the final judgment dividing the community assets, then there may be a form of constructive ouster, exclusion or an equivalent act which is created as to the right of common enjoyment by the divorced spouse not in possession. This exclusion may render the divorced spouse in possession of the community residence liable to the divorced spouse not in possession for the use and occupation of the residence between the date of the divorce and the date of the final judgment. Hertz v. Hertz, 1983-NMSC-004, 99 N.M. 320, 657 P.2d 1169.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Ejectment § 21.