It shall be sufficient for the plaintiff to declare in his complaint that on some day, named therein, he was entitled to the possession of the premises, describing them; and that the defendant, on a day named in the complaint, afterwards entered into such premises, and unlawfully withheld from the plaintiff the possession thereof, to his damage for any sum he may name.
History: C.L. 1897, § 2685 (253), added by Laws 1907, ch. 107, § 1 (253); Code 1915, § 4363; C.S. 1929, § 105-1804; 1941 Comp., § 25-805; 1953 Comp., § 22-8-5.
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Cross references. — For real property description in pleading, see 47-1-46 NMSA 1978.
Failure to aver right to possession renders complaint defective. — Complaint in ejectment, failing to aver that plaintiff is entitled to the possession of the premises in question, is fatally defective. Osborne v. United States, 1885-NMSC-010, 3 N.M. (Gild.) 337, 5 P. 465 (decided under former law).
It is not sufficient to allege that defendant unjustly withholds premises from the plaintiff. Osborne v. United States, 1885-NMSC-010, 3 N.M. (Gild.) 337, 5 P. 465 (decided under former law).
Amendments to complaint. — Where, in complaint in ejectment, plaintiff alleges ownership in herself and, though not required by statute to do so, alleges her claim of title from defendant to plaintiff's immediate predecessor in title, plaintiff can show complete title by proof, absent objection thereto, and the complaint is considered as amended to include the omitted and necessary allegation. Herington v. Herrera, 1940-NMSC-033, 44 N.M. 374, 102 P.2d 896.
In ejectment, plaintiff is bound by chain of title pleaded by her. Herington v. Herrera, 1940-NMSC-033, 44 N.M. 374, 102 P.2d 896.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Ejectment §§ 21, 32, 33, 34.
Instructions in ejectment on rule that plaintiff must recover on strength of own title, 159 A.L.R. 646.
Rule that plaintiff in real action may recover on proof of better title from common source as applicable where plaintiff's evidence shows that the common-source title is bad, 5 A.L.R.3d 375.
28A C.J.S. Ejectment § 55 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.]