The words, bargained and sold, or words to the same effect, in all conveyances of hereditary real estate, unless restricted in express terms on the part of the person conveying the same, himself and his heirs, to the person to whom the property is conveyed, his heirs and assignees, shall be limited to the following effect:
A. that the grantor, at the time of the execution of said conveyance, is possessed of an irrevocable possession in fee simple to the property so conveyed;
B. that the said real estate, at the time of the execution of said conveyance, is free from all encumbrance made or suffered to be made by the grantor, or by any person claiming the same under him;
C. for the greater security of the person, his heirs and assignees, to whom said real estate is conveyed by the grantor and his heirs, suits may be instituted the same as if the conditions were stipulated in the said conveyance.
History: Laws 1851-1852, p. 374; C.L. 1865, ch. 44, § 3; C.L. 1884, § 2750; C.L. 1897, § 3941; Code 1915, § 4759; C.S. 1929, § 117-103; 1941 Comp., § 75-110; 1953 Comp., § 70-1-13.
ANNOTATIONSCross references. — For the effect of the word "grant," see 47-1-32 NMSA 1978.
"Hereditary real estate" means real estate of inheritance. Douglass v. Lewis, 131 U.S. 75, 9 S. Ct. 634, 33 L. Ed. 53 (1889).
Effect of express covenant. — When an express covenant of warranty is introduced into a deed, the purchaser is denied the benefits of statutory covenants. Douglass v. Lewis, 131 U.S. 75, 9 S. Ct. 634, 33 L. Ed. 53 (1889).
Covenants of warranty and seisin distinguished. — The covenant of warranty and that of seisin or of right to convey are not equivalent covenants. Defect of title will sustain an action upon the one, while disturbance of possession is requisite to recover upon the other. Douglass v. Lewis, 131 U.S. 75, 9 S. Ct. 634, 33 L. Ed. 53 (1889).
"Possessed of an irrevocable possession in fee simple" means seised of an indefeasible estate in fee simple. Douglass v. Lewis, 131 U.S. 75, 9 S. Ct. 634, 33 L. Ed. 53 (1889).
Law reviews. — For article, "Toward Clarification of New Mexico's Real Property Statutes," see 1 Nat. Res. J. 163 (1961).
For note, "Vendor and Purchaser - Increased Risks of Forfeiture and Malpractice Resulting from the Use of Real Estate Contracts: Albuquerque National Bank v. Albuquerque Ranch Estates, Inc.," see 15 N.M.L. Rev. 99 (1985).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 23 Am. Jur. 2d Deeds §§ 13, 263, 264.
Risk of loss by casualty pending contract for conveyance of real property - modern cases, 85 A.L.R.4th 233.
Construction and effect of provision in contract for sale of realty by which purchaser agrees to take property "as is" or in its existing condition, 8 A.L.R.5th 312.
26 C.J.S. Deeds § 7.