Except as specifically provided in the Deed of Trust Act [48-10-1 to 48-10-21 NMSA 1978], no real property or any interest in it shall be sold under any power of sale contained in any mortgage, mortgage deed, trust deed or any other written instrument having the effect of a mortgage, which has been executed subsequent to the effective date of Laws 1929, Chapter 139, Section 1.
History: Laws 1929, ch. 139, § 1; C.S. 1929, § 117-301; 1941 Comp., § 63-407; 1953 Comp., § 61-7-7; Laws 1987, ch. 61, § 23.
ANNOTATIONSCompiler's notes. — Laws 1929, ch. 139, contained no effective date provision, but was enacted at a session which adjourned on March 9, 1929. See N.M. Const., art. IV, § 23.
Cross references. — For foreclosure of mortgages, see 39-5-1 NMSA 1978 et seq.
The 1987 amendment, effective June 19, 1987, added the catchline; inserted "Except as specifically provided in the Deed of Trust Act" at the beginning of the subsection; deleted "or by virtue of" following "shall be sold under"; substituted "effective date of Laws 1929, Chapter 139, Section 1" for "time this act shall go into effect" at the end of the subsection; and made minor stylistic changes.
Sections not in conflict. — This section does not conflict with provision of Section 37-1-20 NMSA 1978 limiting time within which chattels, goods and land may be sold under power of sale in mortgage. Davis v. Savage, 1946-NMSC-011, 50 N.M. 30, 168 P.2d 851.
Lien enforcement time not extended by intervening legislation. — Where 1929 act (Section 48-7-7 NMSA 1978) intervened before lien resulting from a 1921 mortgage had been enforced and a "renewal" mortgage was executed, time for enforcing the 1921 mortgage lien was not extended because remedy by foreclosure under power of sale had been withdrawn by the legislature which allowed a reasonable time for enforcing the remedy before it took effect. Davis v. Savage, 1946-NMSC-011, 50 N.M. 30, 168 P.2d 851.
Mortgagee entitled to retain possession until debt paid. — Though foreclosure of mortgage is barred by limitations, a mortgagee in possession under contract with mortgagors did not lose the status of a mortgagee in possession by ineffective attempt to sell the land under power of sale, but was entitled to retain possession until mortgage debt was paid. Davis v. Savage, 1946-NMSC-011, 50 N.M. 30, 168 P.2d 851.
Effect of new note. — Where a new note is given promising to pay one year later the face amount of earlier note barred by limitations but not interest accrued thereon, it represents a new contract in so far as concerns effect of intervening statutes limiting the time for exercising power of sale arising under real estate mortgage given to secure the old note. Davis v. Savage, 1946-NMSC-011, 50 N.M. 30, 168 P.2d 851.
Fire policy's notice of sale requirement imperative. — The phrase "any notice of sale" in a fire policy, requiring notice by mortgagee of any sale relating to such property, referred to notice of sale under power of sale in mortgage or trust deed, and was inoperative in this state, having been abolished by statute. Nat'l Mut. Sav. & Loan Ass'n v. Hanover Fire Ins. Co., 1936-NMSC-005, 40 N.M. 44, 53 P.2d 641.
Notice of foreclosure requirement applied solely to first mortgage. — A provision of a fire policy containing standard mortgage clause requiring mortgagee to give notice of foreclosure proceedings applied solely to a first mortgage, and first mortgagees were not precluded from recovery because of failure to notify insurer of proceedings on second mortgage. Nat'l Mut. Sav. & Loan Ass'n v. Hanover Fire Ins. Co., 1936-NMSC-005, 40 N.M. 44, 53 P.2d 641.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 55 Am. Jur. 2d Mortgages §§ 1107 et seq., 1296 et seq.
Declaratory judgment as to deeds of trust, 12 A.L.R. 83, 19 A.L.R. 1124, 50 A.L.R. 42, 68 A.L.R. 110, 87 A.L.R. 1205, 114 A.L.R. 1361, 142 A.L.R. 8
Judgment creditor's remedy where debtor surrenders property to vendee under prior security deed, 36 A.L.R. 805.
Rights and remedies against mortgagee under deed intended as a mortgage, who defeats or impairs equity of redemption by conveying or encumbering property, 46 A.L.R. 1089.
Deed placed in escrow to be delivered to grantee to pay debt due him, as a mortgage, 65 A.L.R. 120.
Change of deed intended as mortgage by subsequent agreement into an absolute deed, 65 A.L.R. 771.
Extension of existing mortgage or deed of trust by subsequent agreement to cover additional indebtedness, 76 A.L.R. 574.
Financial depression as justification of moratorium or other relief to mortgagor, 90 A.L.R. 1330, 94 A.L.R. 1352, 96 A.L.R. 853, 97 A.L.R. 1123, 104 A.L.R. 375.
Removal, substitution and succession of trustee under deed of trust or mortgage securing bonds or other obligations, 98 A.L.R. 1132.
Misstatement in trustee's or mortgagee's report as to amount for which property has been sold under power of sale, 22 A.L.R.2d 979.
Who may assert invalidity of sale, mortgage or other disposition of corporate property without approval of stockholders, 58 A.L.R.2d 784.
Duty and liability of trustee under mortgage or deed of trust to holders of obligations secured thereby, 90 A.L.R.2d 501.
Validity and enforceability of due-on-sale real estate mortgage provisions, 61 A.L.R.4th 1070.
59 C.J.S. Mortgages §§ 544 to 547.