In all suits in the district courts by attachments, when the property attached shall be of a perishable nature and liable to be lost or diminished in value before the final adjudication of the case, and the defendant shall not give bond to retain the possession of the same, the plaintiff or defendant may make out a petition in writing setting forth the kind, nature and condition of the property, and present said petition to the judge of the district in vacation; and if he shall find it sufficient in form and conditions, he may hear the testimony of witnesses as to the property, and if he shall believe that the interests of both plaintiff and defendant will be promoted by the sale of the property, may order such sale to be made, and direct the manner thereof.
History: C.L. 1897, § 2685 (209), added by Laws 1907, ch. 107, § 1 (209); Code 1915, § 4319; C.S. 1929, § 105-1622; 1941 Comp., § 22-124; 1953 Comp., § 26-1-24.
ANNOTATIONS
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Cross references. — For sales of alcoholic liquors to be made only to licensed dealers, see 60-9-5 NMSA 1978.
Wheat, barley and oats subject to sale. — Wheat and barley in the shock and oats growing in field are subject to sale under this section. Mundil v. Hutson, 1928-NMSC-034, 33 N.M. 388, 268 P. 566.
Good faith purchaser takes perfect title. — Good faith purchaser of perishable property sold under this section takes perfect title. Jones v. Springer, 1909-NMSC-012, 15 N.M. 98, 103 P. 265, aff’d, 226 U.S. 148, 33 S. Ct. 64, 57 L. Ed. 161 (1912).
Good faith purchaser succeeds to title of judgment creditor. — Purchaser at sale made under perishable goods statute stands upon different ground than the ordinary purchaser at a judicial sale, upon execution, after judgment, and not only succeeds to the title of the judgment creditor but to the rights of all parties to the suit which may be afterwards determined, and the rights of all the parties to the suit attach to the proceeds of the sale in lieu of the thing sold. Jones v. Springer, 1909-NMSC-012, 15 N.M. 98, 103 P. 265, aff’d, 226 U.S. 148, 33 S. Ct. 64, 57 L. Ed. 161 (1912).
Right of trustee in bankruptcy to proceeds of sale. — Territorial court, which had custody of perishable property by virtue of receivership proceedings, and attachment levied on such property by receiver, before bankruptcy proceedings were commenced, may order same sold and transfer claim of trustee in bankruptcy to the proceeds of the sale. Jones v. Springer, 226 U.S. 148, 33 S. Ct. 64, 57 L. Ed. 161 (1912).
Court has jurisdiction to render judgment in rem, where a valid levy of defendant’s property has been made under a valid writ of attachment, although return of the officer was not made until after judgment was taken. Southern Cal. Fruit Exch. v. Stamm, 1898-NMSC-008, 9 N.M. 361, 54 P. 345 (decided under former law).
Law reviews. — For article, “Attachment in New Mexico – Part II,” see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Attachment and Garnishment §§ 97, 459, 510.
Attachment creditor as purchaser, within rule that first of two purchasers to obtain possession will prevail, 21 A.L.R. 1031.
Construction and effect of provision for execution sale on short notice, or sale in advance of judgment under writ of attachment, where property involved is subject to decay or depreciation, 3 A.L.R.3d 593.
7 C.J.S. Attachment §§ 275, 277, 278.