The action shall be prosecuted in the real names of the parties, and shall be brought against the tenant in possession, or against the person under whom such tenant holds or claims possession. Any person claiming such premises may, on motion, be made a defendant.
History: C.L. 1897, § 2685 (252), added by Laws 1907, ch. 107, § 1 (252); Code 1915, § 4362; C.S. 1929, § 105-1803; 1941 Comp., § 25-804; 1953 Comp., § 22-8-4.
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Cross references. — For action prosecuted by real party in interest, see Rule 1-017 A NMRA.
Determination of necessary party. — Any person having an interest adverse to plaintiff, or claiming title or right of possession, may be made a defendant, but such a person may, or may not, be a necessary party, the rule being subject to the principle that only persons in actual occupation are necessary parties. Latin Am. Council of Christian Churches v. Leal, 57 N.M. 502, 260 P.2d 697 (1953).
One in actual occupation, necessary and proper defendant. — Generally, in an ejectment action the person in actual occupation or possession is a necessary and proper defendant, and no other person is a necessary or proper party defendant. Latin Am. Council of Christian Churches v. Leal, 57 N.M. 502, 260 P.2d 697 (1953).
Action of ejectment against cotenant. — Ejectment lies against a cotenant, or a grantee of a cotenant, attempting to hold adversely to his cotenant. Prior possession, under such circumstances, is sufficient to maintain ejectment. Lasswell v. Kitt, 11 N.M. 459, 70 P. 561 (1902); Lockhart v. Leeds, 10 N.M. 568, 63 P. 48 (1900), rev'd on other grounds, 195 U.S. 427, 25 S. Ct. 76, 49 L. Ed. 263 (1904).
Tenant in common may sue separately in ejectment and may recover possession of the entire estate in subordination to the rights of his cotenants, if the defendant shows no title. De Bergere v. Chaves, 14 N.M. 352, 93 P. 762 (1908), aff'd, 231 U.S. 482, 34 S. Ct. 144, 58 L. Ed. 325 (1913).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Ejectment §§ 1, 26, 27, 28.
28A C.J.S. Ejectment § 50 et seq.
Structure 2021 New Mexico Statutes
Chapter 42 - Actions and Proceedings Relating to Property
Article 4 - Ejectment and Recovery of Real Property
Section 42-4-1 - [When ejectment maintainable.]
Section 42-4-2 - [Wrongful ouster and detention of realty or mining claim.]
Section 42-4-3 - [Principles apply to equity suits.]
Section 42-4-4 - [Parties to action.]
Section 42-4-5 - [Contents of complaint.]
Section 42-4-6 - [Defendant's pleadings; plaintiff's reply.]
Section 42-4-7 - [Ultimate facts authorizing recovery.]
Section 42-4-8 - [Action between cotenants; ouster to be shown.]
Section 42-4-9 - [Rents and profits recoverable as damages.]
Section 42-4-10 - [Title expiring pendente lite; judgment.]
Section 42-4-11 - [Judgment for plaintiff.]
Section 42-4-12 - [Writ of possession.]
Section 42-4-13 - [Execution; judgment for damages and costs.]
Section 42-4-14 - [Improvements and mesne profits; time; claims; notices.]
Section 42-4-17 - [Remedy of person deprived of possession of improvements; time; value; lien.]
Section 42-4-19 - [Sale of improvements.]
Section 42-4-20 - [Reversionary clause in deed; improvements; liens; waiver of claim.]
Section 42-4-22 - [Special verdict or findings; entry on mining land pending suit.]
Section 42-4-23 - [Working mine pending suit; waste.]
Section 42-4-24 - [Assessment work pending suit; retention of ore.]
Section 42-4-25 - [Effect of performing assessment work pending suit.]
Section 42-4-26 - [Measurements and surveys of mine pending suit; authorization; expenses.]
Section 42-4-27 - [Who may enter for measurements and surveys.]