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New Mexico Agreement or Contract for Deed for Sale and Purchase of...
New Mexico Land Contract With Sale With Mineral Rights
State:
New Mexico
Control #:
NM-00470
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Description New Mexico Land Contract
A Contract for Deed is used as owner financing for the purchase of real property. The Seller retains title to the property until an agreed amount is paid. After the agreed amount is paid, the Seller conveys the property to Buyer.
Free preview Deed Of Sale
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FAQ
Mineral rights do not necessarily transfer with the property. Typically, a property conveyance (sale) transfers the rights of both the surface land and the minerals underneath until the mineral rights are sold. Mineral rights are conveyed meaning transferred to a new owner through a deed.
If the land is part of the state trust, contact New Mexico's State Land Office Mineral Program for more information at (505) 827-5750. It is perfectly legal and quite common to transfer mineral rights in New Mexico. Some landowners choose to retain some rights to the land but assign record title ownership to a miner.
When it comes to mineral rights, the standard admonition has long been consistent and emphatic: Avoid selling them. After all, simply owning mineral rights costs you nothing. There are no liability risks, and in most cases, taxes are assessed only on properties that are actively producing oil or gas.
STATE LAND OFFICE: If the mineral rights are owned by the state, you can contact the State Land Office Minerals Program at (505) 827-5750, and this website for Lease Information Minerals. An Internet search for who owns the mineral rights to my property will provide links to information.
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Interesting Questions
A land contract with the sale with mineral rights in New Mexico refers to a contractual agreement between a buyer and a seller, where the buyer purchases a piece of land in New Mexico and acquires the associated mineral rights along with the property.
By default, mineral rights are typically included in a land contract sale in New Mexico unless specified otherwise in the contract. It's important to review the terms of the contract to ensure the inclusion or exclusion of mineral rights.
Mineral rights are legal rights that grant ownership or control over the minerals, such as oil, gas, or minerals beneath the surface of a property. These rights can be separate from surface property ownership and can be leased or sold independently.
Yes, it is possible for the seller to retain the mineral rights even after selling the land. In such cases, the buyer would still own the land but would not have control or ownership over the minerals beneath the surface.
Conducting a mineral rights search is highly recommended before entering into a land contract sale in New Mexico. It helps identify any existing mineral rights reservations or encumbrances that may affect the buyer's ownership and use of the property.
Yes, once the buyer acquires the land along with the mineral rights in a land contract sale, they have the option to sell or lease the mineral rights independently from the land to other parties, subject to any legal restrictions or limitations.
No, not all landowners in New Mexico automatically own the mineral rights beneath their property. Mineral rights can be severed and sold separately from surface property ownership, so it's essential to verify the ownership status of mineral rights during the land contract process.
To protect your interests regarding mineral rights in a land contract sale, it is crucial to consult with a qualified real estate attorney or professional who can thoroughly review the contract, conduct a mineral rights search, and provide guidance on negotiations and potential amendments.
Yes, the buyer can negotiate the terms related to mineral rights during the land contract process. This may include discussing the inclusion or exclusion of mineral rights, determining royalty rates, and establishing any future obligations or limitations related to mineral exploration or extraction.
Yes, there are specific regulations and laws governing land contracts with mineral rights in New Mexico. It is advisable to seek legal counsel for a comprehensive understanding of these regulations, ensuring compliance and protection of the buyer and seller's interests.
More info
New Mexico State Land Office. Oil, Gas, and Minerals Division.A fundamental law in Texas and New Mexico is that property owners' rights extend to the mineral deposits under the surface of their property. Once an offer price is agreed upon, both parties will sign a Purchase and Sale Agreement (PSA). SELLER'S PROPERTY DISCLOSURE - VACANT LAND- 2017.
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Real Estate Contract New Mexico
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Law summary
Agreement or Contract for Deed for Sale and Purchase of Real Estate a/k/a Land or Executory Contract
NEW MEXICO STATUTESCHAPTER 45 Uniform Probate Code
ARTICLE 6 Nonprobate Transfers
PART 4 REAL PROPERTY
45-6-401. Real property; transfer on death deed.
A. An interest in real property may be titled in transfer on death form by recording a deed signed and acknowledged by the record owner of the interest and designating a grantee beneficiary or beneficiaries of the interest. The deed transfers ownership of that interest upon the death of the owner. A transfer on death deed need not be supported by consideration.
B. The signature, consent or agreement of or notice to a grantee beneficiary of a transfer on death deed is not required for any purpose during the lifetime of the record owner.
C. An interest in real property is titled in transfer on death form by executing, acknowledging and recording in the office of the county clerk in the county where the real property is located, prior to the death of the owner, a deed in substantially the following form: "TRANSFER ON DEATH DEED ........ (Name of owner) ........ as owner transfers on death to .... (name of beneficiary) ...., as grantee beneficiary, the following described interest in real property. THIS TRANSFER ON DEATH DEED IS REVOCABLE. IT DOES NOT TRANSFER ANY OWNERSHIP UNTIL THE DEATH OF THE OWNER. IT REVOKES ALL PRIOR BENEFICIARY DESIGNATIONS BY THIS OWNER FOR THIS INTEREST IN REAL PROPERTY.
(description) Witness hand and seal this ............. day of 20 ..... ........................................... (Seal) (Here add acknowledgment(s))".
D. A designation of the grantee beneficiary may be revoked by the record owner at any time prior to the death of the record owner, by the record owner executing, acknowledging and recording in the office of the county clerk in the county where the real property is located an instrument describing the interest and revoking the designation. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required.
E. A designation of the grantee beneficiary may be changed by the record owner at any time prior to the death of the record owner, by the record owner executing, acknowledging and recording a subsequent transfer on death deed. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required. A subsequent transfer on death beneficiary designation revokes a prior designation to the extent there is a conflict between the two designations.
F. A transfer on death deed executed, acknowledged and recorded in accordance with this section is not revoked by the provisions of a will.
G. A joint tenancy in real property is not effected [affected] by a transfer on death deed, and the rights of a surviving joint tenant shall prevail over a grantee beneficiary named in a transfer on death deed. If a joint tenant has executed a transfer on death deed, and if that joint tenant is the last surviving joint tenant, then the transfer on death deed is effective on that joint tenant's death.
H. Title to the interest in real estate recorded in transfer on death form shall vest in the designated grantee beneficiary or beneficiaries on the death of the record owner.
I. Grantee beneficiaries of a transfer on death deed take the record owner's interest in the real estate at death subject to all conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the record owner's lifetime and to any interest conveyed by the record owner that is less than all of the record owner's interest in the property.
J. If the assets of the estate are insufficient, a transfer resulting from a transfer on death deed is not effective against the estate of a deceased party to the extent needed to pay any claims against the estate and the statutory allowances to the surviving spouse and children.
K. If a grantee beneficiary dies prior to the death of the record owner and an alternative grantee beneficiary has not been designated on the deed, the transfer shall lapse.
NEW MEXICO STATUTES
CHAPTER 47 PROPERTY LAW
ARTICLE 1 CONVEYANCES AND GENERAL PROVISIONS
47-1-1. "Real estate" defined.
The term "real estate", as used in Chapter 47 NMSA 1978, shall be so construed as to be applicable to lands, tenements and hereditaments, including all real movable property and leaseholds. As used in this section "leasehold" means an estate in real estate or real property held under a lease.
History: Laws 1851-1852, p. 372; C.L. 1865, ch. 44, § 2; C.L. 1884, § 2749; C.L. 1897, § 3940; Code 1915, § 4758; C.S. 1929, § 117-102; 1941 Comp., § 75-101; 1953 Comp., § 70-1-1; 1991, ch. 234, § 3.
47-1-2 Monopolies; entailments; primogeniture.
Monopolies are contrary to the genius of a free government and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this state.
History: Laws 1851-1852, p. 154; C.L. 1865, ch. 95, § 17; C.L. 1884, § 2600; C.L. 1897, § 3774; Code 1915, § 4770; C.S. 1929, § 117-114; 1941 Comp., § 75-102; 1953 Comp., § 70-1-2; Laws 1992, ch. 66, § 70.
47-1-4 Conveyances authorized.
Any person or persons, or body politic, holding, or who may hold, any right or title to real estate in this state, be it absolute or limited, in possession, remainder or reversion, may convey the same in the manner and subject to the restrictions prescribed in this chapter.
History: Laws 1851-1852, p. 373; C.L. 1865, ch. 44, § 1; C.L. 1884, § 2748; C.L. 1897, § 3939; Code 1915, § 4757; C.S. 1929, § 117-101; 1941 Comp., § 75-103; 1953 Comp., § 70-1-3.
47-1-5 Signing of conveyances.
All conveyances of real estate shall be subscribed by the person transferring his title or interest in said real estate, or by his legal agent or attorney.
History: Laws 1851-1852, p. 374; C.L. 1865, ch. 44, § 4; C.L. 1884, § 2751; C.L. 1897, § 3942; Code 1915, § 4760; C.S. 1929, § 117-104; 1941 Comp., § 75-104; 1953 Comp., § 70-1-4.
47-1-6 Seal unnecessary.
No seal or scroll is necessary to the validity of any contract, bond or conveyance, whether respecting real or personal property, or any other instrument of writing, nor does the addition or omission of a seal or scroll in any way affect the force or effect of the same.
History: Laws 1901, ch. 62, § 11; Code 1915, § 4761; C.S. 1929, § 117-105; 1941 Comp., § 75-105; Laws 1967, ch. 87, § 9; 1953 Comp., § 70-1-5.
47-1-7 Powers of attorney and revocations thereof to be acknowledged and recorded.
All powers of attorney or other writings containing authority to convey real estate, as agent or attorney of the owner of the same, or to execute, as agent for another, any conveyance of real estate, or by which real estate may be affected in law, or equity, shall be acknowledged, certified, filed and recorded, as other writings conveying or affecting real estate are required to be acknowledged. No such power of attorney, or other writing, filed and recorded in the manner prescribed in this section, shall be considered revoked by any act of the party executing the same, until the instrument of writing revoking the same, duly acknowledged and certified to, shall be filed for record and recorded in the office of the county clerk where said power of attorney or other writing is filed and recorded.<br />
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History: Laws 1901, ch. 62, § 21; Code 1915, § 4774; C.S. 1929, § 117-118; 1941 Comp., § 75-106; 1953 Comp., § 70-1-6.<br />
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47-1-8 Conveyances under terminated power of attorney; validation.<br />
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All conveyances or incumbrances of real or personal property heretofore or hereafter made in pursuance of a power of attorney valid when executed, are hereby declared valid notwithstanding the revocation of such power or the death of the donor of such power where the person to whom such conveyance or incumbrance is made or granted is a bona fide purchaser or incumbrancer for value and without notice of such revocation or death.<br />
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History: 1941 Comp., § 75-106a, enacted by Laws 1945, ch. 69, § 1; 1953 Comp., § 70-1-7<br />
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47-1-9 Notice of revocation or death by means of affidavit.<br />
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Notice of such revocation or death may be given so as to affect, with notice, all subsequent purchasers or incumbrancers within the meaning of Section 1 [47-1-8 NMSA 1978] hereof by the filing for record with the county clerk of the county where such real estate is located or where such personal property is usually situated, as the case may be, of the affidavit of any person declaring the facts. Such affidavit may be made on information and belief and such [shall] be duly acknowledged in the same manner as the instrument conveying real estate.<br />
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History: 1941 Comp., § 75-106b, enacted by Laws 1945, ch. 69, § 2; 1953 Comp., § 70-1-8.<br />
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47-1-10 Recordation of affidavit of termination of power of attorney.<br />
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In the absence of the recordation of an affidavit as described in Section 2 [47-1-9 NMSA 1978] hereof, all subsequent bona fide purchasers or incumbrancers without actual notice of the defects in such power of attorney as referred to in Section 1 [47-1-8 NMSA 1978] hereof, shall be entitled to the same interest and to the same extent as they would have been had such power of attorney not been subject to such defects.<br />
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History: 1941 Comp., § 75-106c, enacted by Laws 1945, ch. 69, § 3; 1953 Comp., § 70-1-9.<br />
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47-1-11 Instruments by agent authorized.<br />
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All conveyances of real estate, mortgages, trust deeds, sales contracts and other instruments of writing affecting the title to real estate, subscribed and executed by the owner or owners thereof through his or her duly authorized agent under a duly executed and acknowledged power of attorney, shall have the same force and effect as though said conveyance, mortgage, trust deed, sales contract or other instrument affecting the title to real estate had been actually subscribed by the owner or owners thereof.<br />
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History: Laws 1937, ch. 147, § 1; 1941 Comp., § 75-107; 1953 Comp., § 70-1-10.<br />
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47-1-12 Conveyance by decree or master.<br />
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In all actions relating to real estate, where it becomes necessary for the conveyance of the same by either party to the action the court may enter a decree, which of itself shall operate as a good and sufficient conveyance of the real estate in question or may appoint any proper person to make such conveyance for and on behalf of the party.<br />
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History: Laws 1901, ch. 62, § 10; 1903, ch. 5, § 4; Code 1915, § 4773; C.S. 1929, § 117-117; 1941 Comp., § 75-108; 1953 Comp., § 70-1-11.<br />
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47-1-13 Lineal and collateral securities; contracts binding realty as against heirs and legal claimants.<br />
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Lineal and collateral securities in all cases are hereby forbidden, but the heirs and legal claimants of any person who may have made any written contract or agreement shall be responsible for said contract or agreement to the extent of the lands limited or bequeathed, in such case, and in the manner prescribed by law.<br />
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History: Laws 1851-1852, p. 376; C.L. 1865, ch. 44, § 27; C.L. 1884, § 1426; C.L. 1897, § 2046; Code 1915, § 4766; C.S. 1929, § 117-110; 1941 Comp., § 75-109; 1953 Comp., § 70-1-12.<br />
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47-1-14 Effect of words “bargained and sold”.<br />
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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:<br />
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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;<br />
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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;<br />
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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.<br />
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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.<br />
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47-1-15 Joint grantees or devisees; tenancy in common.<br />
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All interest in any real estate, either granted or bequeathed to two or more persons other than executors or trustees, shall be held in common, unless it be clearly expressed in said grant or bequest that it shall be held by both parties.<br />
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History: Laws 1851-1852, p. 374; C.L. 1865, ch. 44, § 17; C.L. 1884, § 2764; C.L. 1897, § 3961; Code 1915, § 4762; C.S. 1929, § 117-106; 1941 Comp., § 75-111; 1953 Comp., § 70-1-14.<br />
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47-1-16 Instrument of conveyance; prima facie evidence of joint tenancy.<br />
<br />
An instrument conveying or transferring title to real or personal property to two or more persons as joint tenants, to two or more persons and to the survivors of them and the heirs and assigns of the survivor, or to two or more persons with right of survivorship, shall be prima facie evidence that such property is held in a joint tenancy and shall be conclusive as to purchasers or encumbrancers for value. In any litigation involving the issue of such tenancy a preponderance of the evidence shall be sufficient to establish the same.<br />
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History: 1953 Comp., § 70-1-14.1, enacted by Laws 1955, ch. 174, § 1.<br />
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47-1-17 Entailed estates.<br />
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Whenever a conveyance or bequest is made wherein the conveyor or testator shall hold possession of property, be it lands or tenements, in law or equity, as under the English Statute of Edward the First, styled the entail statute, and said property is to be perpetuated in the family, each one of said conveyances or bequests shall only invest the conveyors or testators with possession during their lifetime, who shall possess and hold the right and title to said premises, and no others, the same as a tenant for life is recognized by law; and at the death of said conveyor or testator said lands and tenements shall descend to the children of said conveyor or testator, to be equally divided among them as absolute tenants in common; and if there should be but one child, it shall descend absolutely to it; and if any child should die, the part which he or she should have received shall be given to his or her successor, and if there should be no such successor, then it shall descend to his or her legal heirs.<br />
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History: Laws 1851-1852, p. 376; C.L. 1865, ch. 44, § 24; C.L. 1884, § 1423; C.L. 1897, § 2043; Code 1915, § 4763; C.S. 1929, § 117-107; 1941 Comp., § 75-112; 1953 Comp., § 70-1-15.<br />
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47-1-27 “Statutory forms” of conveyance and mortgage of real property.<br />
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The forms set forth in the appendix to this act [47-1-44 NMSA 1978] may be used and shall be sufficient for their respective purposes. They shall be known as “statutory forms” and may be referred to as such. They may be altered as circumstances require, and the authorization of such forms shall not prevent the use of other forms.<br />
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History: 1941 Comp., § 75-126, enacted by Laws 1947, ch. 203, § 1; 1953 Comp., § 70-1-26.<br />
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47-1-28 Applicability from effective date of act.<br />
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For the purpose of avoiding the unnecessary use of words in deeds or other instruments relating to real estate whether said statutory form or other form is used, the rules and definitions contained in this act [47-1-27 through 47-1-44 NMSA 1978] shall apply to all such instruments executed or delivered on or after the effective date of this act.<br />
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History: 1941 Comp., § 75-127, enacted by Laws 1947, ch. 203, § 2; 1953 Comp., § 70-1-27.<br />
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47-1-29 “Warranty deed” effective in fee simple.<br />
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A deed in substance following the form entitled “warranty deed” in the appendix to this act [47-1-44 NMSA 1978] shall, when duly executed, have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor for himself, his heirs, executors, administrators and successors, with the grantee, his heirs, successors and assigns, as specified in the definition of “warranty covenants” in Section 10 [47-1-37 NMSA 1978] of this act.<br />
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History: 1941 Comp., § 75-128, enacted by Laws 1947, ch. 203, § 3; 1953 Comp., § 70-1-28.<br />
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47-1-30 “Quitclaim deed” effective in fee simple without warranty.<br />
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A deed in substance following the form entitled “quitclaim deed” shall, when duly executed, have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use of any interest the grantor owns in the premises, without warranty.<br />
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History: 1941 Comp., § 75-129, enacted by Laws 1947, ch. 203, § 4; 1953 Comp., § 70-1-29.<br />
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47-1-31 “Special warranty deed”; effect.<br />
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A deed in substance following the form entitled “special warranty deed” shall, when duly executed, have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor, for himself, his heirs, executors, administrators, and successors, with the grantee, his heirs, successors and assigns as specified in the definition of “special warranty covenants” in Section 11 [47-1-38 NMSA 1978] of this act.<br />
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History: 1941 Comp., § 75-130, enacted by Laws 1947, ch. 203, § 5; 1953 Comp., § 70-1-30.<br />
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47-1-32 “Grant” effective as a word of conveyance.<br />
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In a conveyance of real estate the word “grant” shall be a sufficient word of conveyance without the use of the words “give, bargain, sell and convey” and no covenant shall be implied from the use of the word, “grant.”<br />
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History: 1941 Comp., § 75-131, enacted by Laws 1947, ch. 203, § 6; 1953 Comp., § 70-1-31.<br />
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47-1-33 Unnecessary terms; construction of deeds or reservations.<br />
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In a conveyance or reservation of real estate the terms, “heirs,” “assigns” or other technical words of inheritance shall not be necessary to convey or reserve an estate in fee. A deed or reservation of real estate shall be construed to convey or reserve an estate in fee simple, unless a different intention clearly appears in the deed.<br />
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History: 1941 Comp., § 75-132, enacted by Laws 1947, ch. 203, § 7; 1953 Comp., § 70-1-32.<br />
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47-1-34 Rights included without enumeration.<br />
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In a conveyance or mortgage of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them generally or specifically.<br />
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History: 1941 Comp., § 75-133, enacted by Laws 1947, ch. 203, § 8; 1953 Comp., § 70-1-33.<br />
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47-1-35 Conveyance or mortgage to joint tenants.<br />
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In a conveyance or mortgage of real estate, the designation of two or more grantees “as joint tenants” shall be construed to mean that the conveyance is to the grantees as joint tenants, and not as tenants in common, and to the survivor of them and the heirs and assigns of the survivor.<br />
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History: 1941 Comp., § 75-134, enacted by Laws 1947, ch. 203, § 9; 1953 Comp., § 70-1-34.<br />
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47-1-36 Joint tenancies defined; creation.<br />
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A joint tenancy in real property is one owned by two or more persons, each owning the whole and an equal undivided share, by a title created by a single devise or conveyance, when expressly declared in the will or conveyance to be a joint tenancy, or by conveyance from a sole owner to himself and others, or from tenants in common to themselves, or to themselves and others, or from husband and wife when holding as community property or otherwise to themselves or to themselves and others, when expressly declared in the conveyance to be a joint tenancy, or when granted or devised to executors or trustees.<br />
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History: 1953 Comp., § 70-1-34.1, enacted by Laws 1971, ch. 220, § 1.<br />
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47-1-37 Effect of warranty covenants in conveyances.<br />
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In a conveyance of real estate the words, “warranty covenants” shall have the full force, meaning and effect of the following words: “the grantor for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns, that he is lawfully seized in fee simple of the granted premises; that they are free from all former and other grants, bargains, sales, taxes, assessments and encumbrances of what kind and nature soever; that he has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons.”<br />
<br />
History: 1941 Comp., § 75-135, enacted by Laws 1947, ch. 203, § 10; 1953 Comp., § 70-1-35.<br />
<br />
<br />
47-1-38 Effect of special warranty covenants in conveyances.<br />
<br />
In a conveyance of real estate the words “special warranty covenants” shall have the full force, meaning and effect of the following words: “the grantor for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns that the granted premises are free from all enucumbrances [encumbrances] made by the grantor, and that he will, and his heirs, executors, administrators and successors shall warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons claiming by, through or under the grantor, but against none other.”<br />
<br />
History: 1941 Comp., § 75-136, enacted by Laws 1947, ch. 203, § 11; 1953 Comp., § 70-1-36.<br />
<br />
47-1-39 Mortgage or deed of trust provisions; effect.<br />
<br />
A deed in substance following the forms entitled “mortgage” or “deed of trust” shall when duly executed have the force and effect of a mortgage or deed of trust by way of mortgage to the use of the mortgagee and his heirs and assigns with mortgage covenants and upon statutory mortgage condition as defined in the following two sections to secure the payment of the money or the performance of any obligation therein specified. The parties may insert in such mortgage any other lawful agreement or condition.<br />
<br />
History: 1941 Comp., § 75-137, enacted by Laws 1947, ch. 203, § 12; 1953 Comp., § 70-1-37.<br />
<br />
<br />
47-1-40 Construction of “mortgage covenants”.<br />
<br />
In a mortgage or deed of trust by way of mortgage of real estate “mortgage covenants” shall have the full force and meaning and effect of the following words and shall be applied and construed accordingly: “the mortgagor for himself, his heirs, executors, administrators and successors, covenants with the mortgagee and his heirs, successors and assigns that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the mortgagee and his heirs, successors and assigns forever against the lawful claims and demands of all persons.”<br />
<br />
History: 1941 Comp., § 75-138, enacted by Laws 1947, ch. 203, § 13; 1953 Comp., § 70-1-38.<br />
<br />
<br />
47-1-41 Construction of “statutory mortgage condition”.<br />
<br />
In a mortgage or deed of trust by way of mortgage of real estate the words, “statutory mortgage condition” shall have the full force, meaning and effect of the following words and shall be applied and construed accordingly: “in the event any of the following terms, conditions or obligations are broken by the mortgagor, this mortgage (or deed of trust) shall thereupon at the option of the mortgagee, be subject to foreclosure and the premises may be sold in the manner and form provided by law, and the proceeds arising from the sale thereof shall be applied to the payment of all indebtedness of every kind owing to the mortgagee by virtue of the terms of this mortgage or by virtue of the terms of the obligation or obligations secured hereby:<br />
<br />
A. mortgagor shall pay or perform to mortgagee or his executors, administrators, successors or assigns all amounts and obligations as provided in the obligation secured hereby and in the manner, form, and at the time or times provided in the obligation or in any extension thereof;<br />
<br />
B. mortgagor shall perform the conditions of any prior mortgage, encumbrance, condition or covenant;<br />
<br />
C. mortgagor shall pay when due and payable all taxes, charges, and assessments to whomsoever and whenever laid or assessed upon the mortgaged premises or on any interest therein;<br />
<br />
D. mortgagor shall, during the continuance of the indebtedness secured hereby keep all buildings on the mortgaged premises in good repair and shall not commit or suffer any strip or waste of the mortgaged premises;<br />
<br />
E. mortgagor shall pay when due all state and federal grazing lease fees; and<br />
<br />
F. mortgagor shall keep the buildings on the mortgaged premises insured in the sum specified and against the hazards specified in the mortgage for the benefit of the mortgagee and his executors, administrators, successors and assigns. The insurance shall be in such form and in such insurance companies as the mortgagee shall approve. Mortgagor shall deliver the policy or policies to the mortgagee and at least two days prior to the expiration of any policy on the premises shall deliver to mortgagee a new and sufficient policy to take the place of the one so expiring. In the event of the failure or refusal of the mortgagor to keep in repair the buildings on the mortgaged premises; or to keep the premises insured, or to deliver the policies of insurance, as provided; or to pay taxes and assessments, or to perform the conditions of any prior mortgage, encumbrance, covenant or condition, or to pay state and federal grazing lease fees, the mortgagee and its executors, administrators, successors or assigns may, at his option, make such repairs, or procure such insurance, or pay such taxes or assessments, or pay such state and federal grazing lease fees, or perform such conditions and all monies thus paid or expenses thus incurred shall be payable by the mortgagor on demand and shall be so much additional indebtedness secured by the mortgage.”<br />
<br />
History: 1941 Comp., § 75-139, enacted by Laws 1947, ch. 203, § 14; 1953 Comp., § 70-1-39; Laws 1969, ch. 108, § 1.<br />
<br />
<br />
47-1-42 Sheriff designated as successor trustee.<br />
<br />
It shall be unnecessary to recite in any deed of trust given by way of mortgage that in the case of the resignation, refusal, failure or inability of the trustee named therein at any time to act, the then acting sheriff of the county in which said real estate is situate shall be successor trustee with like powers to those of the named trustee; but the same shall be implied in any such deed of trust unless a contrary intention appears therefrom.<br />
<br />
History: 1941 Comp., § 75-140, enacted by Laws 1947, ch. 203, § 15; 1953 Comp., § 70-1-40.<br />
<br />
<br />
47-1-43 Verb “assign” sufficient to transfer interest.<br />
<br />
In an assignment of a mortgage or deed of trust by way of mortgage of real estate the word “assign” shall be a sufficient word to transfer the mortgage or the beneficial interest under deed of trust, without the words, “transfer and set over.”<br />
<br />
History: 1941 Comp., § 75-141, enacted by Laws 1947, ch. 203, § 16; 1953 Comp., § 70-1-41.<br />
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<br />
47-1-44 Conveyancing forms.<br />
<br />
(1) WARRANTY DEED<br />
<br />
………, for consideration paid, grant ……. to ………, whose address is ………., the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with warranty covenants.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
………… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(2) WARRANTY DEED (JOINT TENANTS)<br />
<br />
………, for consideration paid, grant ……… to ……., whose address is ……., and ……., whose address is ………, as joint tenants the following [described] real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with warranty covenants.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(3) QUITCLAIM DEED<br />
<br />
………, for consideration paid, quitclaim ……… to ………, whose address is ………, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(4) QUITCLAIM DEED (JOINT TENANTS)<br />
<br />
………, for consideration paid quitclaim ……… to ……., whose address is ………, and ………, whose address is ……., as joint tenants the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(5) SPECIAL WARRANTY DEED<br />
<br />
………, for consideration paid, grant ……. to ……., whose address is ………, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with special warranty covenants.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(6) MORTGAGE<br />
<br />
………, for consideration paid, grant ……… to ……., whose address is ………, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with mortgage covenants.<br />
<br />
This mortgage secures the performance of the following obligation:<br />
<br />
(Here attach copy of or summarize note or other obligation)<br />
<br />
and is upon the statutory mortgage condition for the breach of which it is subject to foreclosure as provided by law. The amount specified for insurance as provided in the statutory mortgage condition is $ … and the hazard …… to be insured against ……… fire …<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(7) DEED OF TRUST<br />
<br />
………, for consideration paid, grant ……. to ……., whose address is ………, as trustee for ……., whose address is ……., beneficiary, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with mortgage covenants.<br />
<br />
This deed of trust secures the performance of the following obligation:<br />
<br />
(Here attach copy of or summarize note or other obligation)<br />
<br />
and is upon the statutory mortgage condition for the breach of which it is subject to foreclosure as provided by law. The amount specified for insurance as provided in the statutory mortgage condition is $ …, and the hazard ……. to be insured against …… fire ……<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(8) RELEASE OF MORTGAGE<br />
<br />
…….., mortgagee ……… under a certain mortgage executed by ………, on the …… day of ……., 19 …, and recorded in Book … page … of the records of ……… county, New Mexico, do ……… hereby discharge all of the real estate mentioned in said mortgage from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(9) PARTIAL RELEASE OF MORTGAGE<br />
<br />
………, mortgagee ……… under a certain mortgage executed by ……… on the …… day of ……., 19 …, and recorded in Book …, page … of the records of ……… county, New Mexico, do ……… hereby discharge the following portion only of the real estate described in said mortgage:<br />
<br />
(description)<br />
<br />
from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(10) RELEASE OF DEED OF TRUST<br />
<br />
…….., trustee under a certain deed of trust executed by ……. on the …… day of ……., 19 …, and recorded in Book … , page … of the records of ……… county, New Mexico, does hereby, at the written request of the beneficiary of said deed of trust, discharge all of the real estate mentioned in said deed of trust from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(11) PARTIAL RELEASE OF DEED OF TRUST<br />
<br />
………, trustee under a certain deed of trust executed by ……… on the …… day of ……., 19 …, and recorded in Book … page … of the records of ……… county, New Mexico does hereby, at the written request of the beneficiary of said deed of trust discharge the following portion only of the real estate described in said deed of trust.<br />
<br />
(description)<br />
<br />
from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(12) ASSIGNMENT OF MORTGAGE<br />
<br />
………, holder ……… of a mortgage from ……. to ……. dated ……… and recorded in Book … page … of the records of ……… county, New Mexico, hereby assign ……… said mortgage and the obligation secured thereby to [ ……… ], whose address is ………<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(13) ASSIGNMENT OF DEED OF TRUST<br />
<br />
………, beneficiary ……. of a deed of trust from …… to ………, trustee for the undersigned dated ……… and recorded in Book … page … of the records of ……… county, New Mexico, hereby assign ……… the beneficial interest under said deed of trust and the obligation secured thereby to ………, whose address is ………<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
History: 1941 Comp., § 75-142, enacted by Laws 1947, ch. 203, Appx.; 1953 Comp., § 70-1-42; Laws 1975, ch. 135, § 1.<br />
<br />
NEW MEXICO CASE LAW<br />
<br />
During the life of the real estate contract any risk of loss or enhancement in value accrues to the purchaser. Upon default and forfeiture, the buyer’s interest is terminated and there is no enhancement value to be recovered by the buyer. Russell v. Richards, 103 N.M. 48 (1985)<br />
<br />
The rule is well settled in New Mexico that forfeiture provisions in real estate contracts are enforceable absent unfairness which shocks the conscience of the court. To determine whether a forfeiture shocks the conscience of the court, the court applies the following equitable considerations: the amount of money already paid by the buyer to the seller; the period of possession of the real property by the buyer; the market value of the real property at the time of default compared to the original sales price; and the rental potential and value of the real property. Id.<br />
<br />
During the life of the real estate contract any risk of loss or enhancement in value accrues to the purchaser. Upon default and forfeiture, the buyer’s interest is terminated and there is no enhancement value to be recovered by the buyer. Id.
Legal definition
Agreement or Contract for Deed for Sale and Purchase of Real Estate a/k/a Land or Executory Contract
NEW MEXICO STATUTES
CHAPTER 45 Uniform Probate Code
ARTICLE 6 Nonprobate Transfers
PART 4 REAL PROPERTY
45-6-401. Real property; transfer on death deed.
A. An interest in real property may be titled in transfer on death form by recording a deed signed and acknowledged by the record owner of the interest and designating a grantee beneficiary or beneficiaries of the interest. The deed transfers ownership of that interest upon the death of the owner. A transfer on death deed need not be supported by consideration.
B. The signature, consent or agreement of or notice to a grantee beneficiary of a transfer on death deed is not required for any purpose during the lifetime of the record owner.
C. An interest in real property is titled in transfer on death form by executing, acknowledging and recording in the office of the county clerk in the county where the real property is located, prior to the death of the owner, a deed in substantially the following form: "TRANSFER ON DEATH DEED ........ (Name of owner) ........ as owner transfers on death to .... (name of beneficiary) ...., as grantee beneficiary, the following described interest in real property. THIS TRANSFER ON DEATH DEED IS REVOCABLE. IT DOES NOT TRANSFER ANY OWNERSHIP UNTIL THE DEATH OF THE OWNER. IT REVOKES ALL PRIOR BENEFICIARY DESIGNATIONS BY THIS OWNER FOR THIS INTEREST IN REAL PROPERTY.
(description) Witness hand and seal this ............. day of 20 ..... ........................................... (Seal) (Here add acknowledgment(s))".
D. A designation of the grantee beneficiary may be revoked by the record owner at any time prior to the death of the record owner, by the record owner executing, acknowledging and recording in the office of the county clerk in the county where the real property is located an instrument describing the interest and revoking the designation. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required.
E. A designation of the grantee beneficiary may be changed by the record owner at any time prior to the death of the record owner, by the record owner executing, acknowledging and recording a subsequent transfer on death deed. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required. A subsequent transfer on death beneficiary designation revokes a prior designation to the extent there is a conflict between the two designations.
F. A transfer on death deed executed, acknowledged and recorded in accordance with this section is not revoked by the provisions of a will.
G. A joint tenancy in real property is not effected [affected] by a transfer on death deed, and the rights of a surviving joint tenant shall prevail over a grantee beneficiary named in a transfer on death deed. If a joint tenant has executed a transfer on death deed, and if that joint tenant is the last surviving joint tenant, then the transfer on death deed is effective on that joint tenant's death.
H. Title to the interest in real estate recorded in transfer on death form shall vest in the designated grantee beneficiary or beneficiaries on the death of the record owner.
I. Grantee beneficiaries of a transfer on death deed take the record owner's interest in the real estate at death subject to all conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the record owner's lifetime and to any interest conveyed by the record owner that is less than all of the record owner's interest in the property.
J. If the assets of the estate are insufficient, a transfer resulting from a transfer on death deed is not effective against the estate of a deceased party to the extent needed to pay any claims against the estate and the statutory allowances to the surviving spouse and children.
K. If a grantee beneficiary dies prior to the death of the record owner and an alternative grantee beneficiary has not been designated on the deed, the transfer shall lapse.
NEW MEXICO STATUTES
CHAPTER 47 PROPERTY LAW
ARTICLE 1 CONVEYANCES AND GENERAL PROVISIONS
47-1-1. "Real estate" defined.
The term "real estate", as used in Chapter 47 NMSA 1978, shall be so construed as to be applicable to lands, tenements and hereditaments, including all real movable property and leaseholds. As used in this section "leasehold" means an estate in real estate or real property held under a lease.
History: Laws 1851-1852, p. 372; C.L. 1865, ch. 44, § 2; C.L. 1884, § 2749; C.L. 1897, § 3940; Code 1915, § 4758; C.S. 1929, § 117-102; 1941 Comp., § 75-101; 1953 Comp., § 70-1-1; 1991, ch. 234, § 3.
47-1-2 Monopolies; entailments; primogeniture.
Monopolies are contrary to the genius of a free government and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this state.
History: Laws 1851-1852, p. 154; C.L. 1865, ch. 95, § 17; C.L. 1884, § 2600; C.L. 1897, § 3774; Code 1915, § 4770; C.S. 1929, § 117-114; 1941 Comp., § 75-102; 1953 Comp., § 70-1-2; Laws 1992, ch. 66, § 70.
47-1-4 Conveyances authorized.
Any person or persons, or body politic, holding, or who may hold, any right or title to real estate in this state, be it absolute or limited, in possession, remainder or reversion, may convey the same in the manner and subject to the restrictions prescribed in this chapter.
History: Laws 1851-1852, p. 373; C.L. 1865, ch. 44, § 1; C.L. 1884, § 2748; C.L. 1897, § 3939; Code 1915, § 4757; C.S. 1929, § 117-101; 1941 Comp., § 75-103; 1953 Comp., § 70-1-3.
47-1-5 Signing of conveyances.
All conveyances of real estate shall be subscribed by the person transferring his title or interest in said real estate, or by his legal agent or attorney.
History: Laws 1851-1852, p. 374; C.L. 1865, ch. 44, § 4; C.L. 1884, § 2751; C.L. 1897, § 3942; Code 1915, § 4760; C.S. 1929, § 117-104; 1941 Comp., § 75-104; 1953 Comp., § 70-1-4.
47-1-6 Seal unnecessary.
No seal or scroll is necessary to the validity of any contract, bond or conveyance, whether respecting real or personal property, or any other instrument of writing, nor does the addition or omission of a seal or scroll in any way affect the force or effect of the same.
History: Laws 1901, ch. 62, § 11; Code 1915, § 4761; C.S. 1929, § 117-105; 1941 Comp., § 75-105; Laws 1967, ch. 87, § 9; 1953 Comp., § 70-1-5.
47-1-7 Powers of attorney and revocations thereof to be acknowledged and recorded.
All powers of attorney or other writings containing authority to convey real estate, as agent or attorney of the owner of the same, or to execute, as agent for another, any conveyance of real estate, or by which real estate may be affected in law, or equity, shall be acknowledged, certified, filed and recorded, as other writings conveying or affecting real estate are required to be acknowledged. No such power of attorney, or other writing, filed and recorded in the manner prescribed in this section, shall be considered revoked by any act of the party executing the same, until the instrument of writing revoking the same, duly acknowledged and certified to, shall be filed for record and recorded in the office of the county clerk where said power of attorney or other writing is filed and recorded.<br />
<br />
History: Laws 1901, ch. 62, § 21; Code 1915, § 4774; C.S. 1929, § 117-118; 1941 Comp., § 75-106; 1953 Comp., § 70-1-6.<br />
<br />
<br />
47-1-8 Conveyances under terminated power of attorney; validation.<br />
<br />
All conveyances or incumbrances of real or personal property heretofore or hereafter made in pursuance of a power of attorney valid when executed, are hereby declared valid notwithstanding the revocation of such power or the death of the donor of such power where the person to whom such conveyance or incumbrance is made or granted is a bona fide purchaser or incumbrancer for value and without notice of such revocation or death.<br />
<br />
History: 1941 Comp., § 75-106a, enacted by Laws 1945, ch. 69, § 1; 1953 Comp., § 70-1-7<br />
<br />
47-1-9 Notice of revocation or death by means of affidavit.<br />
<br />
Notice of such revocation or death may be given so as to affect, with notice, all subsequent purchasers or incumbrancers within the meaning of Section 1 [47-1-8 NMSA 1978] hereof by the filing for record with the county clerk of the county where such real estate is located or where such personal property is usually situated, as the case may be, of the affidavit of any person declaring the facts. Such affidavit may be made on information and belief and such [shall] be duly acknowledged in the same manner as the instrument conveying real estate.<br />
<br />
History: 1941 Comp., § 75-106b, enacted by Laws 1945, ch. 69, § 2; 1953 Comp., § 70-1-8.<br />
<br />
<br />
47-1-10 Recordation of affidavit of termination of power of attorney.<br />
<br />
In the absence of the recordation of an affidavit as described in Section 2 [47-1-9 NMSA 1978] hereof, all subsequent bona fide purchasers or incumbrancers without actual notice of the defects in such power of attorney as referred to in Section 1 [47-1-8 NMSA 1978] hereof, shall be entitled to the same interest and to the same extent as they would have been had such power of attorney not been subject to such defects.<br />
<br />
History: 1941 Comp., § 75-106c, enacted by Laws 1945, ch. 69, § 3; 1953 Comp., § 70-1-9.<br />
<br />
47-1-11 Instruments by agent authorized.<br />
<br />
All conveyances of real estate, mortgages, trust deeds, sales contracts and other instruments of writing affecting the title to real estate, subscribed and executed by the owner or owners thereof through his or her duly authorized agent under a duly executed and acknowledged power of attorney, shall have the same force and effect as though said conveyance, mortgage, trust deed, sales contract or other instrument affecting the title to real estate had been actually subscribed by the owner or owners thereof.<br />
<br />
History: Laws 1937, ch. 147, § 1; 1941 Comp., § 75-107; 1953 Comp., § 70-1-10.<br />
<br />
47-1-12 Conveyance by decree or master.<br />
<br />
In all actions relating to real estate, where it becomes necessary for the conveyance of the same by either party to the action the court may enter a decree, which of itself shall operate as a good and sufficient conveyance of the real estate in question or may appoint any proper person to make such conveyance for and on behalf of the party.<br />
<br />
History: Laws 1901, ch. 62, § 10; 1903, ch. 5, § 4; Code 1915, § 4773; C.S. 1929, § 117-117; 1941 Comp., § 75-108; 1953 Comp., § 70-1-11.<br />
<br />
47-1-13 Lineal and collateral securities; contracts binding realty as against heirs and legal claimants.<br />
<br />
Lineal and collateral securities in all cases are hereby forbidden, but the heirs and legal claimants of any person who may have made any written contract or agreement shall be responsible for said contract or agreement to the extent of the lands limited or bequeathed, in such case, and in the manner prescribed by law.<br />
<br />
History: Laws 1851-1852, p. 376; C.L. 1865, ch. 44, § 27; C.L. 1884, § 1426; C.L. 1897, § 2046; Code 1915, § 4766; C.S. 1929, § 117-110; 1941 Comp., § 75-109; 1953 Comp., § 70-1-12.<br />
<br />
47-1-14 Effect of words “bargained and sold”.<br />
<br />
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:<br />
<br />
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;<br />
<br />
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;<br />
<br />
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.<br />
<br />
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.<br />
<br />
47-1-15 Joint grantees or devisees; tenancy in common.<br />
<br />
All interest in any real estate, either granted or bequeathed to two or more persons other than executors or trustees, shall be held in common, unless it be clearly expressed in said grant or bequest that it shall be held by both parties.<br />
<br />
History: Laws 1851-1852, p. 374; C.L. 1865, ch. 44, § 17; C.L. 1884, § 2764; C.L. 1897, § 3961; Code 1915, § 4762; C.S. 1929, § 117-106; 1941 Comp., § 75-111; 1953 Comp., § 70-1-14.<br />
<br />
47-1-16 Instrument of conveyance; prima facie evidence of joint tenancy.<br />
<br />
An instrument conveying or transferring title to real or personal property to two or more persons as joint tenants, to two or more persons and to the survivors of them and the heirs and assigns of the survivor, or to two or more persons with right of survivorship, shall be prima facie evidence that such property is held in a joint tenancy and shall be conclusive as to purchasers or encumbrancers for value. In any litigation involving the issue of such tenancy a preponderance of the evidence shall be sufficient to establish the same.<br />
<br />
History: 1953 Comp., § 70-1-14.1, enacted by Laws 1955, ch. 174, § 1.<br />
<br />
47-1-17 Entailed estates.<br />
<br />
Whenever a conveyance or bequest is made wherein the conveyor or testator shall hold possession of property, be it lands or tenements, in law or equity, as under the English Statute of Edward the First, styled the entail statute, and said property is to be perpetuated in the family, each one of said conveyances or bequests shall only invest the conveyors or testators with possession during their lifetime, who shall possess and hold the right and title to said premises, and no others, the same as a tenant for life is recognized by law; and at the death of said conveyor or testator said lands and tenements shall descend to the children of said conveyor or testator, to be equally divided among them as absolute tenants in common; and if there should be but one child, it shall descend absolutely to it; and if any child should die, the part which he or she should have received shall be given to his or her successor, and if there should be no such successor, then it shall descend to his or her legal heirs.<br />
<br />
History: Laws 1851-1852, p. 376; C.L. 1865, ch. 44, § 24; C.L. 1884, § 1423; C.L. 1897, § 2043; Code 1915, § 4763; C.S. 1929, § 117-107; 1941 Comp., § 75-112; 1953 Comp., § 70-1-15.<br />
<br />
47-1-27 “Statutory forms” of conveyance and mortgage of real property.<br />
<br />
The forms set forth in the appendix to this act [47-1-44 NMSA 1978] may be used and shall be sufficient for their respective purposes. They shall be known as “statutory forms” and may be referred to as such. They may be altered as circumstances require, and the authorization of such forms shall not prevent the use of other forms.<br />
<br />
History: 1941 Comp., § 75-126, enacted by Laws 1947, ch. 203, § 1; 1953 Comp., § 70-1-26.<br />
<br />
<br />
47-1-28 Applicability from effective date of act.<br />
<br />
For the purpose of avoiding the unnecessary use of words in deeds or other instruments relating to real estate whether said statutory form or other form is used, the rules and definitions contained in this act [47-1-27 through 47-1-44 NMSA 1978] shall apply to all such instruments executed or delivered on or after the effective date of this act.<br />
<br />
History: 1941 Comp., § 75-127, enacted by Laws 1947, ch. 203, § 2; 1953 Comp., § 70-1-27.<br />
<br />
47-1-29 “Warranty deed” effective in fee simple.<br />
<br />
A deed in substance following the form entitled “warranty deed” in the appendix to this act [47-1-44 NMSA 1978] shall, when duly executed, have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor for himself, his heirs, executors, administrators and successors, with the grantee, his heirs, successors and assigns, as specified in the definition of “warranty covenants” in Section 10 [47-1-37 NMSA 1978] of this act.<br />
<br />
History: 1941 Comp., § 75-128, enacted by Laws 1947, ch. 203, § 3; 1953 Comp., § 70-1-28.<br />
<br />
<br />
47-1-30 “Quitclaim deed” effective in fee simple without warranty.<br />
<br />
A deed in substance following the form entitled “quitclaim deed” shall, when duly executed, have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use of any interest the grantor owns in the premises, without warranty.<br />
<br />
History: 1941 Comp., § 75-129, enacted by Laws 1947, ch. 203, § 4; 1953 Comp., § 70-1-29.<br />
<br />
47-1-31 “Special warranty deed”; effect.<br />
<br />
A deed in substance following the form entitled “special warranty deed” shall, when duly executed, have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor, for himself, his heirs, executors, administrators, and successors, with the grantee, his heirs, successors and assigns as specified in the definition of “special warranty covenants” in Section 11 [47-1-38 NMSA 1978] of this act.<br />
<br />
History: 1941 Comp., § 75-130, enacted by Laws 1947, ch. 203, § 5; 1953 Comp., § 70-1-30.<br />
<br />
47-1-32 “Grant” effective as a word of conveyance.<br />
<br />
In a conveyance of real estate the word “grant” shall be a sufficient word of conveyance without the use of the words “give, bargain, sell and convey” and no covenant shall be implied from the use of the word, “grant.”<br />
<br />
History: 1941 Comp., § 75-131, enacted by Laws 1947, ch. 203, § 6; 1953 Comp., § 70-1-31.<br />
<br />
47-1-33 Unnecessary terms; construction of deeds or reservations.<br />
<br />
In a conveyance or reservation of real estate the terms, “heirs,” “assigns” or other technical words of inheritance shall not be necessary to convey or reserve an estate in fee. A deed or reservation of real estate shall be construed to convey or reserve an estate in fee simple, unless a different intention clearly appears in the deed.<br />
<br />
History: 1941 Comp., § 75-132, enacted by Laws 1947, ch. 203, § 7; 1953 Comp., § 70-1-32.<br />
<br />
<br />
47-1-34 Rights included without enumeration.<br />
<br />
In a conveyance or mortgage of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them generally or specifically.<br />
<br />
History: 1941 Comp., § 75-133, enacted by Laws 1947, ch. 203, § 8; 1953 Comp., § 70-1-33.<br />
<br />
47-1-35 Conveyance or mortgage to joint tenants.<br />
<br />
In a conveyance or mortgage of real estate, the designation of two or more grantees “as joint tenants” shall be construed to mean that the conveyance is to the grantees as joint tenants, and not as tenants in common, and to the survivor of them and the heirs and assigns of the survivor.<br />
<br />
History: 1941 Comp., § 75-134, enacted by Laws 1947, ch. 203, § 9; 1953 Comp., § 70-1-34.<br />
<br />
<br />
47-1-36 Joint tenancies defined; creation.<br />
<br />
A joint tenancy in real property is one owned by two or more persons, each owning the whole and an equal undivided share, by a title created by a single devise or conveyance, when expressly declared in the will or conveyance to be a joint tenancy, or by conveyance from a sole owner to himself and others, or from tenants in common to themselves, or to themselves and others, or from husband and wife when holding as community property or otherwise to themselves or to themselves and others, when expressly declared in the conveyance to be a joint tenancy, or when granted or devised to executors or trustees.<br />
<br />
History: 1953 Comp., § 70-1-34.1, enacted by Laws 1971, ch. 220, § 1.<br />
<br />
<br />
47-1-37 Effect of warranty covenants in conveyances.<br />
<br />
In a conveyance of real estate the words, “warranty covenants” shall have the full force, meaning and effect of the following words: “the grantor for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns, that he is lawfully seized in fee simple of the granted premises; that they are free from all former and other grants, bargains, sales, taxes, assessments and encumbrances of what kind and nature soever; that he has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons.”<br />
<br />
History: 1941 Comp., § 75-135, enacted by Laws 1947, ch. 203, § 10; 1953 Comp., § 70-1-35.<br />
<br />
<br />
47-1-38 Effect of special warranty covenants in conveyances.<br />
<br />
In a conveyance of real estate the words “special warranty covenants” shall have the full force, meaning and effect of the following words: “the grantor for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns that the granted premises are free from all enucumbrances [encumbrances] made by the grantor, and that he will, and his heirs, executors, administrators and successors shall warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons claiming by, through or under the grantor, but against none other.”<br />
<br />
History: 1941 Comp., § 75-136, enacted by Laws 1947, ch. 203, § 11; 1953 Comp., § 70-1-36.<br />
<br />
47-1-39 Mortgage or deed of trust provisions; effect.<br />
<br />
A deed in substance following the forms entitled “mortgage” or “deed of trust” shall when duly executed have the force and effect of a mortgage or deed of trust by way of mortgage to the use of the mortgagee and his heirs and assigns with mortgage covenants and upon statutory mortgage condition as defined in the following two sections to secure the payment of the money or the performance of any obligation therein specified. The parties may insert in such mortgage any other lawful agreement or condition.<br />
<br />
History: 1941 Comp., § 75-137, enacted by Laws 1947, ch. 203, § 12; 1953 Comp., § 70-1-37.<br />
<br />
<br />
47-1-40 Construction of “mortgage covenants”.<br />
<br />
In a mortgage or deed of trust by way of mortgage of real estate “mortgage covenants” shall have the full force and meaning and effect of the following words and shall be applied and construed accordingly: “the mortgagor for himself, his heirs, executors, administrators and successors, covenants with the mortgagee and his heirs, successors and assigns that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the mortgagee and his heirs, successors and assigns forever against the lawful claims and demands of all persons.”<br />
<br />
History: 1941 Comp., § 75-138, enacted by Laws 1947, ch. 203, § 13; 1953 Comp., § 70-1-38.<br />
<br />
<br />
47-1-41 Construction of “statutory mortgage condition”.<br />
<br />
In a mortgage or deed of trust by way of mortgage of real estate the words, “statutory mortgage condition” shall have the full force, meaning and effect of the following words and shall be applied and construed accordingly: “in the event any of the following terms, conditions or obligations are broken by the mortgagor, this mortgage (or deed of trust) shall thereupon at the option of the mortgagee, be subject to foreclosure and the premises may be sold in the manner and form provided by law, and the proceeds arising from the sale thereof shall be applied to the payment of all indebtedness of every kind owing to the mortgagee by virtue of the terms of this mortgage or by virtue of the terms of the obligation or obligations secured hereby:<br />
<br />
A. mortgagor shall pay or perform to mortgagee or his executors, administrators, successors or assigns all amounts and obligations as provided in the obligation secured hereby and in the manner, form, and at the time or times provided in the obligation or in any extension thereof;<br />
<br />
B. mortgagor shall perform the conditions of any prior mortgage, encumbrance, condition or covenant;<br />
<br />
C. mortgagor shall pay when due and payable all taxes, charges, and assessments to whomsoever and whenever laid or assessed upon the mortgaged premises or on any interest therein;<br />
<br />
D. mortgagor shall, during the continuance of the indebtedness secured hereby keep all buildings on the mortgaged premises in good repair and shall not commit or suffer any strip or waste of the mortgaged premises;<br />
<br />
E. mortgagor shall pay when due all state and federal grazing lease fees; and<br />
<br />
F. mortgagor shall keep the buildings on the mortgaged premises insured in the sum specified and against the hazards specified in the mortgage for the benefit of the mortgagee and his executors, administrators, successors and assigns. The insurance shall be in such form and in such insurance companies as the mortgagee shall approve. Mortgagor shall deliver the policy or policies to the mortgagee and at least two days prior to the expiration of any policy on the premises shall deliver to mortgagee a new and sufficient policy to take the place of the one so expiring. In the event of the failure or refusal of the mortgagor to keep in repair the buildings on the mortgaged premises; or to keep the premises insured, or to deliver the policies of insurance, as provided; or to pay taxes and assessments, or to perform the conditions of any prior mortgage, encumbrance, covenant or condition, or to pay state and federal grazing lease fees, the mortgagee and its executors, administrators, successors or assigns may, at his option, make such repairs, or procure such insurance, or pay such taxes or assessments, or pay such state and federal grazing lease fees, or perform such conditions and all monies thus paid or expenses thus incurred shall be payable by the mortgagor on demand and shall be so much additional indebtedness secured by the mortgage.”<br />
<br />
History: 1941 Comp., § 75-139, enacted by Laws 1947, ch. 203, § 14; 1953 Comp., § 70-1-39; Laws 1969, ch. 108, § 1.<br />
<br />
<br />
47-1-42 Sheriff designated as successor trustee.<br />
<br />
It shall be unnecessary to recite in any deed of trust given by way of mortgage that in the case of the resignation, refusal, failure or inability of the trustee named therein at any time to act, the then acting sheriff of the county in which said real estate is situate shall be successor trustee with like powers to those of the named trustee; but the same shall be implied in any such deed of trust unless a contrary intention appears therefrom.<br />
<br />
History: 1941 Comp., § 75-140, enacted by Laws 1947, ch. 203, § 15; 1953 Comp., § 70-1-40.<br />
<br />
<br />
47-1-43 Verb “assign” sufficient to transfer interest.<br />
<br />
In an assignment of a mortgage or deed of trust by way of mortgage of real estate the word “assign” shall be a sufficient word to transfer the mortgage or the beneficial interest under deed of trust, without the words, “transfer and set over.”<br />
<br />
History: 1941 Comp., § 75-141, enacted by Laws 1947, ch. 203, § 16; 1953 Comp., § 70-1-41.<br />
<br />
<br />
47-1-44 Conveyancing forms.<br />
<br />
(1) WARRANTY DEED<br />
<br />
………, for consideration paid, grant ……. to ………, whose address is ………., the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with warranty covenants.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
………… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(2) WARRANTY DEED (JOINT TENANTS)<br />
<br />
………, for consideration paid, grant ……… to ……., whose address is ……., and ……., whose address is ………, as joint tenants the following [described] real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with warranty covenants.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(3) QUITCLAIM DEED<br />
<br />
………, for consideration paid, quitclaim ……… to ………, whose address is ………, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(4) QUITCLAIM DEED (JOINT TENANTS)<br />
<br />
………, for consideration paid quitclaim ……… to ……., whose address is ………, and ………, whose address is ……., as joint tenants the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(5) SPECIAL WARRANTY DEED<br />
<br />
………, for consideration paid, grant ……. to ……., whose address is ………, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with special warranty covenants.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(6) MORTGAGE<br />
<br />
………, for consideration paid, grant ……… to ……., whose address is ………, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with mortgage covenants.<br />
<br />
This mortgage secures the performance of the following obligation:<br />
<br />
(Here attach copy of or summarize note or other obligation)<br />
<br />
and is upon the statutory mortgage condition for the breach of which it is subject to foreclosure as provided by law. The amount specified for insurance as provided in the statutory mortgage condition is $ … and the hazard …… to be insured against ……… fire …<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(7) DEED OF TRUST<br />
<br />
………, for consideration paid, grant ……. to ……., whose address is ………, as trustee for ……., whose address is ……., beneficiary, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with mortgage covenants.<br />
<br />
This deed of trust secures the performance of the following obligation:<br />
<br />
(Here attach copy of or summarize note or other obligation)<br />
<br />
and is upon the statutory mortgage condition for the breach of which it is subject to foreclosure as provided by law. The amount specified for insurance as provided in the statutory mortgage condition is $ …, and the hazard ……. to be insured against …… fire ……<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(8) RELEASE OF MORTGAGE<br />
<br />
…….., mortgagee ……… under a certain mortgage executed by ………, on the …… day of ……., 19 …, and recorded in Book … page … of the records of ……… county, New Mexico, do ……… hereby discharge all of the real estate mentioned in said mortgage from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(9) PARTIAL RELEASE OF MORTGAGE<br />
<br />
………, mortgagee ……… under a certain mortgage executed by ……… on the …… day of ……., 19 …, and recorded in Book …, page … of the records of ……… county, New Mexico, do ……… hereby discharge the following portion only of the real estate described in said mortgage:<br />
<br />
(description)<br />
<br />
from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(10) RELEASE OF DEED OF TRUST<br />
<br />
…….., trustee under a certain deed of trust executed by ……. on the …… day of ……., 19 …, and recorded in Book … , page … of the records of ……… county, New Mexico, does hereby, at the written request of the beneficiary of said deed of trust, discharge all of the real estate mentioned in said deed of trust from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(11) PARTIAL RELEASE OF DEED OF TRUST<br />
<br />
………, trustee under a certain deed of trust executed by ……… on the …… day of ……., 19 …, and recorded in Book … page … of the records of ……… county, New Mexico does hereby, at the written request of the beneficiary of said deed of trust discharge the following portion only of the real estate described in said deed of trust.<br />
<br />
(description)<br />
<br />
from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(12) ASSIGNMENT OF MORTGAGE<br />
<br />
………, holder ……… of a mortgage from ……. to ……. dated ……… and recorded in Book … page … of the records of ……… county, New Mexico, hereby assign ……… said mortgage and the obligation secured thereby to [ ……… ], whose address is ………<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(13) ASSIGNMENT OF DEED OF TRUST<br />
<br />
………, beneficiary ……. of a deed of trust from …… to ………, trustee for the undersigned dated ……… and recorded in Book … page … of the records of ……… county, New Mexico, hereby assign ……… the beneficial interest under said deed of trust and the obligation secured thereby to ………, whose address is ………<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
History: 1941 Comp., § 75-142, enacted by Laws 1947, ch. 203, Appx.; 1953 Comp., § 70-1-42; Laws 1975, ch. 135, § 1.<br />
<br />
NEW MEXICO CASE LAW<br />
<br />
During the life of the real estate contract any risk of loss or enhancement in value accrues to the purchaser. Upon default and forfeiture, the buyer’s interest is terminated and there is no enhancement value to be recovered by the buyer. Russell v. Richards, 103 N.M. 48 (1985)<br />
<br />
The rule is well settled in New Mexico that forfeiture provisions in real estate contracts are enforceable absent unfairness which shocks the conscience of the court. To determine whether a forfeiture shocks the conscience of the court, the court applies the following equitable considerations: the amount of money already paid by the buyer to the seller; the period of possession of the real property by the buyer; the market value of the real property at the time of default compared to the original sales price; and the rental potential and value of the real property. Id.<br />
<br />
During the life of the real estate contract any risk of loss or enhancement in value accrues to the purchaser. Upon default and forfeiture, the buyer’s interest is terminated and there is no enhancement value to be recovered by the buyer. Id.
CHAPTER 45 Uniform Probate Code
ARTICLE 6 Nonprobate Transfers
PART 4 REAL PROPERTY
45-6-401. Real property; transfer on death deed.
A. An interest in real property may be titled in transfer on death form by recording a deed signed and acknowledged by the record owner of the interest and designating a grantee beneficiary or beneficiaries of the interest. The deed transfers ownership of that interest upon the death of the owner. A transfer on death deed need not be supported by consideration.
B. The signature, consent or agreement of or notice to a grantee beneficiary of a transfer on death deed is not required for any purpose during the lifetime of the record owner.
C. An interest in real property is titled in transfer on death form by executing, acknowledging and recording in the office of the county clerk in the county where the real property is located, prior to the death of the owner, a deed in substantially the following form: "TRANSFER ON DEATH DEED ........ (Name of owner) ........ as owner transfers on death to .... (name of beneficiary) ...., as grantee beneficiary, the following described interest in real property. THIS TRANSFER ON DEATH DEED IS REVOCABLE. IT DOES NOT TRANSFER ANY OWNERSHIP UNTIL THE DEATH OF THE OWNER. IT REVOKES ALL PRIOR BENEFICIARY DESIGNATIONS BY THIS OWNER FOR THIS INTEREST IN REAL PROPERTY.
(description) Witness hand and seal this ............. day of 20 ..... ........................................... (Seal) (Here add acknowledgment(s))".
D. A designation of the grantee beneficiary may be revoked by the record owner at any time prior to the death of the record owner, by the record owner executing, acknowledging and recording in the office of the county clerk in the county where the real property is located an instrument describing the interest and revoking the designation. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required.
E. A designation of the grantee beneficiary may be changed by the record owner at any time prior to the death of the record owner, by the record owner executing, acknowledging and recording a subsequent transfer on death deed. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required. A subsequent transfer on death beneficiary designation revokes a prior designation to the extent there is a conflict between the two designations.
F. A transfer on death deed executed, acknowledged and recorded in accordance with this section is not revoked by the provisions of a will.
G. A joint tenancy in real property is not effected [affected] by a transfer on death deed, and the rights of a surviving joint tenant shall prevail over a grantee beneficiary named in a transfer on death deed. If a joint tenant has executed a transfer on death deed, and if that joint tenant is the last surviving joint tenant, then the transfer on death deed is effective on that joint tenant's death.
H. Title to the interest in real estate recorded in transfer on death form shall vest in the designated grantee beneficiary or beneficiaries on the death of the record owner.
I. Grantee beneficiaries of a transfer on death deed take the record owner's interest in the real estate at death subject to all conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the record owner's lifetime and to any interest conveyed by the record owner that is less than all of the record owner's interest in the property.
J. If the assets of the estate are insufficient, a transfer resulting from a transfer on death deed is not effective against the estate of a deceased party to the extent needed to pay any claims against the estate and the statutory allowances to the surviving spouse and children.
K. If a grantee beneficiary dies prior to the death of the record owner and an alternative grantee beneficiary has not been designated on the deed, the transfer shall lapse.
NEW MEXICO STATUTES
CHAPTER 47 PROPERTY LAW
ARTICLE 1 CONVEYANCES AND GENERAL PROVISIONS
47-1-1. "Real estate" defined.
The term "real estate", as used in Chapter 47 NMSA 1978, shall be so construed as to be applicable to lands, tenements and hereditaments, including all real movable property and leaseholds. As used in this section "leasehold" means an estate in real estate or real property held under a lease.
History: Laws 1851-1852, p. 372; C.L. 1865, ch. 44, § 2; C.L. 1884, § 2749; C.L. 1897, § 3940; Code 1915, § 4758; C.S. 1929, § 117-102; 1941 Comp., § 75-101; 1953 Comp., § 70-1-1; 1991, ch. 234, § 3.
47-1-2 Monopolies; entailments; primogeniture.
Monopolies are contrary to the genius of a free government and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this state.
History: Laws 1851-1852, p. 154; C.L. 1865, ch. 95, § 17; C.L. 1884, § 2600; C.L. 1897, § 3774; Code 1915, § 4770; C.S. 1929, § 117-114; 1941 Comp., § 75-102; 1953 Comp., § 70-1-2; Laws 1992, ch. 66, § 70.
47-1-4 Conveyances authorized.
Any person or persons, or body politic, holding, or who may hold, any right or title to real estate in this state, be it absolute or limited, in possession, remainder or reversion, may convey the same in the manner and subject to the restrictions prescribed in this chapter.
History: Laws 1851-1852, p. 373; C.L. 1865, ch. 44, § 1; C.L. 1884, § 2748; C.L. 1897, § 3939; Code 1915, § 4757; C.S. 1929, § 117-101; 1941 Comp., § 75-103; 1953 Comp., § 70-1-3.
47-1-5 Signing of conveyances.
All conveyances of real estate shall be subscribed by the person transferring his title or interest in said real estate, or by his legal agent or attorney.
History: Laws 1851-1852, p. 374; C.L. 1865, ch. 44, § 4; C.L. 1884, § 2751; C.L. 1897, § 3942; Code 1915, § 4760; C.S. 1929, § 117-104; 1941 Comp., § 75-104; 1953 Comp., § 70-1-4.
47-1-6 Seal unnecessary.
No seal or scroll is necessary to the validity of any contract, bond or conveyance, whether respecting real or personal property, or any other instrument of writing, nor does the addition or omission of a seal or scroll in any way affect the force or effect of the same.
History: Laws 1901, ch. 62, § 11; Code 1915, § 4761; C.S. 1929, § 117-105; 1941 Comp., § 75-105; Laws 1967, ch. 87, § 9; 1953 Comp., § 70-1-5.
47-1-7 Powers of attorney and revocations thereof to be acknowledged and recorded.
All powers of attorney or other writings containing authority to convey real estate, as agent or attorney of the owner of the same, or to execute, as agent for another, any conveyance of real estate, or by which real estate may be affected in law, or equity, shall be acknowledged, certified, filed and recorded, as other writings conveying or affecting real estate are required to be acknowledged. No such power of attorney, or other writing, filed and recorded in the manner prescribed in this section, shall be considered revoked by any act of the party executing the same, until the instrument of writing revoking the same, duly acknowledged and certified to, shall be filed for record and recorded in the office of the county clerk where said power of attorney or other writing is filed and recorded.<br />
<br />
History: Laws 1901, ch. 62, § 21; Code 1915, § 4774; C.S. 1929, § 117-118; 1941 Comp., § 75-106; 1953 Comp., § 70-1-6.<br />
<br />
<br />
47-1-8 Conveyances under terminated power of attorney; validation.<br />
<br />
All conveyances or incumbrances of real or personal property heretofore or hereafter made in pursuance of a power of attorney valid when executed, are hereby declared valid notwithstanding the revocation of such power or the death of the donor of such power where the person to whom such conveyance or incumbrance is made or granted is a bona fide purchaser or incumbrancer for value and without notice of such revocation or death.<br />
<br />
History: 1941 Comp., § 75-106a, enacted by Laws 1945, ch. 69, § 1; 1953 Comp., § 70-1-7<br />
<br />
47-1-9 Notice of revocation or death by means of affidavit.<br />
<br />
Notice of such revocation or death may be given so as to affect, with notice, all subsequent purchasers or incumbrancers within the meaning of Section 1 [47-1-8 NMSA 1978] hereof by the filing for record with the county clerk of the county where such real estate is located or where such personal property is usually situated, as the case may be, of the affidavit of any person declaring the facts. Such affidavit may be made on information and belief and such [shall] be duly acknowledged in the same manner as the instrument conveying real estate.<br />
<br />
History: 1941 Comp., § 75-106b, enacted by Laws 1945, ch. 69, § 2; 1953 Comp., § 70-1-8.<br />
<br />
<br />
47-1-10 Recordation of affidavit of termination of power of attorney.<br />
<br />
In the absence of the recordation of an affidavit as described in Section 2 [47-1-9 NMSA 1978] hereof, all subsequent bona fide purchasers or incumbrancers without actual notice of the defects in such power of attorney as referred to in Section 1 [47-1-8 NMSA 1978] hereof, shall be entitled to the same interest and to the same extent as they would have been had such power of attorney not been subject to such defects.<br />
<br />
History: 1941 Comp., § 75-106c, enacted by Laws 1945, ch. 69, § 3; 1953 Comp., § 70-1-9.<br />
<br />
47-1-11 Instruments by agent authorized.<br />
<br />
All conveyances of real estate, mortgages, trust deeds, sales contracts and other instruments of writing affecting the title to real estate, subscribed and executed by the owner or owners thereof through his or her duly authorized agent under a duly executed and acknowledged power of attorney, shall have the same force and effect as though said conveyance, mortgage, trust deed, sales contract or other instrument affecting the title to real estate had been actually subscribed by the owner or owners thereof.<br />
<br />
History: Laws 1937, ch. 147, § 1; 1941 Comp., § 75-107; 1953 Comp., § 70-1-10.<br />
<br />
47-1-12 Conveyance by decree or master.<br />
<br />
In all actions relating to real estate, where it becomes necessary for the conveyance of the same by either party to the action the court may enter a decree, which of itself shall operate as a good and sufficient conveyance of the real estate in question or may appoint any proper person to make such conveyance for and on behalf of the party.<br />
<br />
History: Laws 1901, ch. 62, § 10; 1903, ch. 5, § 4; Code 1915, § 4773; C.S. 1929, § 117-117; 1941 Comp., § 75-108; 1953 Comp., § 70-1-11.<br />
<br />
47-1-13 Lineal and collateral securities; contracts binding realty as against heirs and legal claimants.<br />
<br />
Lineal and collateral securities in all cases are hereby forbidden, but the heirs and legal claimants of any person who may have made any written contract or agreement shall be responsible for said contract or agreement to the extent of the lands limited or bequeathed, in such case, and in the manner prescribed by law.<br />
<br />
History: Laws 1851-1852, p. 376; C.L. 1865, ch. 44, § 27; C.L. 1884, § 1426; C.L. 1897, § 2046; Code 1915, § 4766; C.S. 1929, § 117-110; 1941 Comp., § 75-109; 1953 Comp., § 70-1-12.<br />
<br />
47-1-14 Effect of words “bargained and sold”.<br />
<br />
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:<br />
<br />
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;<br />
<br />
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;<br />
<br />
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.<br />
<br />
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.<br />
<br />
47-1-15 Joint grantees or devisees; tenancy in common.<br />
<br />
All interest in any real estate, either granted or bequeathed to two or more persons other than executors or trustees, shall be held in common, unless it be clearly expressed in said grant or bequest that it shall be held by both parties.<br />
<br />
History: Laws 1851-1852, p. 374; C.L. 1865, ch. 44, § 17; C.L. 1884, § 2764; C.L. 1897, § 3961; Code 1915, § 4762; C.S. 1929, § 117-106; 1941 Comp., § 75-111; 1953 Comp., § 70-1-14.<br />
<br />
47-1-16 Instrument of conveyance; prima facie evidence of joint tenancy.<br />
<br />
An instrument conveying or transferring title to real or personal property to two or more persons as joint tenants, to two or more persons and to the survivors of them and the heirs and assigns of the survivor, or to two or more persons with right of survivorship, shall be prima facie evidence that such property is held in a joint tenancy and shall be conclusive as to purchasers or encumbrancers for value. In any litigation involving the issue of such tenancy a preponderance of the evidence shall be sufficient to establish the same.<br />
<br />
History: 1953 Comp., § 70-1-14.1, enacted by Laws 1955, ch. 174, § 1.<br />
<br />
47-1-17 Entailed estates.<br />
<br />
Whenever a conveyance or bequest is made wherein the conveyor or testator shall hold possession of property, be it lands or tenements, in law or equity, as under the English Statute of Edward the First, styled the entail statute, and said property is to be perpetuated in the family, each one of said conveyances or bequests shall only invest the conveyors or testators with possession during their lifetime, who shall possess and hold the right and title to said premises, and no others, the same as a tenant for life is recognized by law; and at the death of said conveyor or testator said lands and tenements shall descend to the children of said conveyor or testator, to be equally divided among them as absolute tenants in common; and if there should be but one child, it shall descend absolutely to it; and if any child should die, the part which he or she should have received shall be given to his or her successor, and if there should be no such successor, then it shall descend to his or her legal heirs.<br />
<br />
History: Laws 1851-1852, p. 376; C.L. 1865, ch. 44, § 24; C.L. 1884, § 1423; C.L. 1897, § 2043; Code 1915, § 4763; C.S. 1929, § 117-107; 1941 Comp., § 75-112; 1953 Comp., § 70-1-15.<br />
<br />
47-1-27 “Statutory forms” of conveyance and mortgage of real property.<br />
<br />
The forms set forth in the appendix to this act [47-1-44 NMSA 1978] may be used and shall be sufficient for their respective purposes. They shall be known as “statutory forms” and may be referred to as such. They may be altered as circumstances require, and the authorization of such forms shall not prevent the use of other forms.<br />
<br />
History: 1941 Comp., § 75-126, enacted by Laws 1947, ch. 203, § 1; 1953 Comp., § 70-1-26.<br />
<br />
<br />
47-1-28 Applicability from effective date of act.<br />
<br />
For the purpose of avoiding the unnecessary use of words in deeds or other instruments relating to real estate whether said statutory form or other form is used, the rules and definitions contained in this act [47-1-27 through 47-1-44 NMSA 1978] shall apply to all such instruments executed or delivered on or after the effective date of this act.<br />
<br />
History: 1941 Comp., § 75-127, enacted by Laws 1947, ch. 203, § 2; 1953 Comp., § 70-1-27.<br />
<br />
47-1-29 “Warranty deed” effective in fee simple.<br />
<br />
A deed in substance following the form entitled “warranty deed” in the appendix to this act [47-1-44 NMSA 1978] shall, when duly executed, have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor for himself, his heirs, executors, administrators and successors, with the grantee, his heirs, successors and assigns, as specified in the definition of “warranty covenants” in Section 10 [47-1-37 NMSA 1978] of this act.<br />
<br />
History: 1941 Comp., § 75-128, enacted by Laws 1947, ch. 203, § 3; 1953 Comp., § 70-1-28.<br />
<br />
<br />
47-1-30 “Quitclaim deed” effective in fee simple without warranty.<br />
<br />
A deed in substance following the form entitled “quitclaim deed” shall, when duly executed, have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use of any interest the grantor owns in the premises, without warranty.<br />
<br />
History: 1941 Comp., § 75-129, enacted by Laws 1947, ch. 203, § 4; 1953 Comp., § 70-1-29.<br />
<br />
47-1-31 “Special warranty deed”; effect.<br />
<br />
A deed in substance following the form entitled “special warranty deed” shall, when duly executed, have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor, for himself, his heirs, executors, administrators, and successors, with the grantee, his heirs, successors and assigns as specified in the definition of “special warranty covenants” in Section 11 [47-1-38 NMSA 1978] of this act.<br />
<br />
History: 1941 Comp., § 75-130, enacted by Laws 1947, ch. 203, § 5; 1953 Comp., § 70-1-30.<br />
<br />
47-1-32 “Grant” effective as a word of conveyance.<br />
<br />
In a conveyance of real estate the word “grant” shall be a sufficient word of conveyance without the use of the words “give, bargain, sell and convey” and no covenant shall be implied from the use of the word, “grant.”<br />
<br />
History: 1941 Comp., § 75-131, enacted by Laws 1947, ch. 203, § 6; 1953 Comp., § 70-1-31.<br />
<br />
47-1-33 Unnecessary terms; construction of deeds or reservations.<br />
<br />
In a conveyance or reservation of real estate the terms, “heirs,” “assigns” or other technical words of inheritance shall not be necessary to convey or reserve an estate in fee. A deed or reservation of real estate shall be construed to convey or reserve an estate in fee simple, unless a different intention clearly appears in the deed.<br />
<br />
History: 1941 Comp., § 75-132, enacted by Laws 1947, ch. 203, § 7; 1953 Comp., § 70-1-32.<br />
<br />
<br />
47-1-34 Rights included without enumeration.<br />
<br />
In a conveyance or mortgage of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them generally or specifically.<br />
<br />
History: 1941 Comp., § 75-133, enacted by Laws 1947, ch. 203, § 8; 1953 Comp., § 70-1-33.<br />
<br />
47-1-35 Conveyance or mortgage to joint tenants.<br />
<br />
In a conveyance or mortgage of real estate, the designation of two or more grantees “as joint tenants” shall be construed to mean that the conveyance is to the grantees as joint tenants, and not as tenants in common, and to the survivor of them and the heirs and assigns of the survivor.<br />
<br />
History: 1941 Comp., § 75-134, enacted by Laws 1947, ch. 203, § 9; 1953 Comp., § 70-1-34.<br />
<br />
<br />
47-1-36 Joint tenancies defined; creation.<br />
<br />
A joint tenancy in real property is one owned by two or more persons, each owning the whole and an equal undivided share, by a title created by a single devise or conveyance, when expressly declared in the will or conveyance to be a joint tenancy, or by conveyance from a sole owner to himself and others, or from tenants in common to themselves, or to themselves and others, or from husband and wife when holding as community property or otherwise to themselves or to themselves and others, when expressly declared in the conveyance to be a joint tenancy, or when granted or devised to executors or trustees.<br />
<br />
History: 1953 Comp., § 70-1-34.1, enacted by Laws 1971, ch. 220, § 1.<br />
<br />
<br />
47-1-37 Effect of warranty covenants in conveyances.<br />
<br />
In a conveyance of real estate the words, “warranty covenants” shall have the full force, meaning and effect of the following words: “the grantor for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns, that he is lawfully seized in fee simple of the granted premises; that they are free from all former and other grants, bargains, sales, taxes, assessments and encumbrances of what kind and nature soever; that he has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons.”<br />
<br />
History: 1941 Comp., § 75-135, enacted by Laws 1947, ch. 203, § 10; 1953 Comp., § 70-1-35.<br />
<br />
<br />
47-1-38 Effect of special warranty covenants in conveyances.<br />
<br />
In a conveyance of real estate the words “special warranty covenants” shall have the full force, meaning and effect of the following words: “the grantor for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns that the granted premises are free from all enucumbrances [encumbrances] made by the grantor, and that he will, and his heirs, executors, administrators and successors shall warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons claiming by, through or under the grantor, but against none other.”<br />
<br />
History: 1941 Comp., § 75-136, enacted by Laws 1947, ch. 203, § 11; 1953 Comp., § 70-1-36.<br />
<br />
47-1-39 Mortgage or deed of trust provisions; effect.<br />
<br />
A deed in substance following the forms entitled “mortgage” or “deed of trust” shall when duly executed have the force and effect of a mortgage or deed of trust by way of mortgage to the use of the mortgagee and his heirs and assigns with mortgage covenants and upon statutory mortgage condition as defined in the following two sections to secure the payment of the money or the performance of any obligation therein specified. The parties may insert in such mortgage any other lawful agreement or condition.<br />
<br />
History: 1941 Comp., § 75-137, enacted by Laws 1947, ch. 203, § 12; 1953 Comp., § 70-1-37.<br />
<br />
<br />
47-1-40 Construction of “mortgage covenants”.<br />
<br />
In a mortgage or deed of trust by way of mortgage of real estate “mortgage covenants” shall have the full force and meaning and effect of the following words and shall be applied and construed accordingly: “the mortgagor for himself, his heirs, executors, administrators and successors, covenants with the mortgagee and his heirs, successors and assigns that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the mortgagee and his heirs, successors and assigns forever against the lawful claims and demands of all persons.”<br />
<br />
History: 1941 Comp., § 75-138, enacted by Laws 1947, ch. 203, § 13; 1953 Comp., § 70-1-38.<br />
<br />
<br />
47-1-41 Construction of “statutory mortgage condition”.<br />
<br />
In a mortgage or deed of trust by way of mortgage of real estate the words, “statutory mortgage condition” shall have the full force, meaning and effect of the following words and shall be applied and construed accordingly: “in the event any of the following terms, conditions or obligations are broken by the mortgagor, this mortgage (or deed of trust) shall thereupon at the option of the mortgagee, be subject to foreclosure and the premises may be sold in the manner and form provided by law, and the proceeds arising from the sale thereof shall be applied to the payment of all indebtedness of every kind owing to the mortgagee by virtue of the terms of this mortgage or by virtue of the terms of the obligation or obligations secured hereby:<br />
<br />
A. mortgagor shall pay or perform to mortgagee or his executors, administrators, successors or assigns all amounts and obligations as provided in the obligation secured hereby and in the manner, form, and at the time or times provided in the obligation or in any extension thereof;<br />
<br />
B. mortgagor shall perform the conditions of any prior mortgage, encumbrance, condition or covenant;<br />
<br />
C. mortgagor shall pay when due and payable all taxes, charges, and assessments to whomsoever and whenever laid or assessed upon the mortgaged premises or on any interest therein;<br />
<br />
D. mortgagor shall, during the continuance of the indebtedness secured hereby keep all buildings on the mortgaged premises in good repair and shall not commit or suffer any strip or waste of the mortgaged premises;<br />
<br />
E. mortgagor shall pay when due all state and federal grazing lease fees; and<br />
<br />
F. mortgagor shall keep the buildings on the mortgaged premises insured in the sum specified and against the hazards specified in the mortgage for the benefit of the mortgagee and his executors, administrators, successors and assigns. The insurance shall be in such form and in such insurance companies as the mortgagee shall approve. Mortgagor shall deliver the policy or policies to the mortgagee and at least two days prior to the expiration of any policy on the premises shall deliver to mortgagee a new and sufficient policy to take the place of the one so expiring. In the event of the failure or refusal of the mortgagor to keep in repair the buildings on the mortgaged premises; or to keep the premises insured, or to deliver the policies of insurance, as provided; or to pay taxes and assessments, or to perform the conditions of any prior mortgage, encumbrance, covenant or condition, or to pay state and federal grazing lease fees, the mortgagee and its executors, administrators, successors or assigns may, at his option, make such repairs, or procure such insurance, or pay such taxes or assessments, or pay such state and federal grazing lease fees, or perform such conditions and all monies thus paid or expenses thus incurred shall be payable by the mortgagor on demand and shall be so much additional indebtedness secured by the mortgage.”<br />
<br />
History: 1941 Comp., § 75-139, enacted by Laws 1947, ch. 203, § 14; 1953 Comp., § 70-1-39; Laws 1969, ch. 108, § 1.<br />
<br />
<br />
47-1-42 Sheriff designated as successor trustee.<br />
<br />
It shall be unnecessary to recite in any deed of trust given by way of mortgage that in the case of the resignation, refusal, failure or inability of the trustee named therein at any time to act, the then acting sheriff of the county in which said real estate is situate shall be successor trustee with like powers to those of the named trustee; but the same shall be implied in any such deed of trust unless a contrary intention appears therefrom.<br />
<br />
History: 1941 Comp., § 75-140, enacted by Laws 1947, ch. 203, § 15; 1953 Comp., § 70-1-40.<br />
<br />
<br />
47-1-43 Verb “assign” sufficient to transfer interest.<br />
<br />
In an assignment of a mortgage or deed of trust by way of mortgage of real estate the word “assign” shall be a sufficient word to transfer the mortgage or the beneficial interest under deed of trust, without the words, “transfer and set over.”<br />
<br />
History: 1941 Comp., § 75-141, enacted by Laws 1947, ch. 203, § 16; 1953 Comp., § 70-1-41.<br />
<br />
<br />
47-1-44 Conveyancing forms.<br />
<br />
(1) WARRANTY DEED<br />
<br />
………, for consideration paid, grant ……. to ………, whose address is ………., the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with warranty covenants.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
………… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(2) WARRANTY DEED (JOINT TENANTS)<br />
<br />
………, for consideration paid, grant ……… to ……., whose address is ……., and ……., whose address is ………, as joint tenants the following [described] real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with warranty covenants.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(3) QUITCLAIM DEED<br />
<br />
………, for consideration paid, quitclaim ……… to ………, whose address is ………, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(4) QUITCLAIM DEED (JOINT TENANTS)<br />
<br />
………, for consideration paid quitclaim ……… to ……., whose address is ………, and ………, whose address is ……., as joint tenants the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(5) SPECIAL WARRANTY DEED<br />
<br />
………, for consideration paid, grant ……. to ……., whose address is ………, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with special warranty covenants.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(6) MORTGAGE<br />
<br />
………, for consideration paid, grant ……… to ……., whose address is ………, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with mortgage covenants.<br />
<br />
This mortgage secures the performance of the following obligation:<br />
<br />
(Here attach copy of or summarize note or other obligation)<br />
<br />
and is upon the statutory mortgage condition for the breach of which it is subject to foreclosure as provided by law. The amount specified for insurance as provided in the statutory mortgage condition is $ … and the hazard …… to be insured against ……… fire …<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(7) DEED OF TRUST<br />
<br />
………, for consideration paid, grant ……. to ……., whose address is ………, as trustee for ……., whose address is ……., beneficiary, the following described real estate in ……… county, New Mexico:<br />
<br />
(description)<br />
<br />
with mortgage covenants.<br />
<br />
This deed of trust secures the performance of the following obligation:<br />
<br />
(Here attach copy of or summarize note or other obligation)<br />
<br />
and is upon the statutory mortgage condition for the breach of which it is subject to foreclosure as provided by law. The amount specified for insurance as provided in the statutory mortgage condition is $ …, and the hazard ……. to be insured against …… fire ……<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(8) RELEASE OF MORTGAGE<br />
<br />
…….., mortgagee ……… under a certain mortgage executed by ………, on the …… day of ……., 19 …, and recorded in Book … page … of the records of ……… county, New Mexico, do ……… hereby discharge all of the real estate mentioned in said mortgage from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(9) PARTIAL RELEASE OF MORTGAGE<br />
<br />
………, mortgagee ……… under a certain mortgage executed by ……… on the …… day of ……., 19 …, and recorded in Book …, page … of the records of ……… county, New Mexico, do ……… hereby discharge the following portion only of the real estate described in said mortgage:<br />
<br />
(description)<br />
<br />
from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(10) RELEASE OF DEED OF TRUST<br />
<br />
…….., trustee under a certain deed of trust executed by ……. on the …… day of ……., 19 …, and recorded in Book … , page … of the records of ……… county, New Mexico, does hereby, at the written request of the beneficiary of said deed of trust, discharge all of the real estate mentioned in said deed of trust from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(11) PARTIAL RELEASE OF DEED OF TRUST<br />
<br />
………, trustee under a certain deed of trust executed by ……… on the …… day of ……., 19 …, and recorded in Book … page … of the records of ……… county, New Mexico does hereby, at the written request of the beneficiary of said deed of trust discharge the following portion only of the real estate described in said deed of trust.<br />
<br />
(description)<br />
<br />
from the lien and operation thereof.<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(12) ASSIGNMENT OF MORTGAGE<br />
<br />
………, holder ……… of a mortgage from ……. to ……. dated ……… and recorded in Book … page … of the records of ……… county, New Mexico, hereby assign ……… said mortgage and the obligation secured thereby to [ ……… ], whose address is ………<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
(13) ASSIGNMENT OF DEED OF TRUST<br />
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………, beneficiary ……. of a deed of trust from …… to ………, trustee for the undersigned dated ……… and recorded in Book … page … of the records of ……… county, New Mexico, hereby assign ……… the beneficial interest under said deed of trust and the obligation secured thereby to ………, whose address is ………<br />
<br />
Witness ……… hand …… and seal …… this …… day of ……., 19 …<br />
<br />
……… (Seal)<br />
<br />
(Here add acknowledgment(s))<br />
<br />
History: 1941 Comp., § 75-142, enacted by Laws 1947, ch. 203, Appx.; 1953 Comp., § 70-1-42; Laws 1975, ch. 135, § 1.<br />
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NEW MEXICO CASE LAW<br />
<br />
During the life of the real estate contract any risk of loss or enhancement in value accrues to the purchaser. Upon default and forfeiture, the buyer’s interest is terminated and there is no enhancement value to be recovered by the buyer. Russell v. Richards, 103 N.M. 48 (1985)<br />
<br />
The rule is well settled in New Mexico that forfeiture provisions in real estate contracts are enforceable absent unfairness which shocks the conscience of the court. To determine whether a forfeiture shocks the conscience of the court, the court applies the following equitable considerations: the amount of money already paid by the buyer to the seller; the period of possession of the real property by the buyer; the market value of the real property at the time of default compared to the original sales price; and the rental potential and value of the real property. Id.<br />
<br />
During the life of the real estate contract any risk of loss or enhancement in value accrues to the purchaser. Upon default and forfeiture, the buyer’s interest is terminated and there is no enhancement value to be recovered by the buyer. Id.
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