Any lien acquired under the provisions of this law [48-3-1 to 48-3-15 NMSA 1978] except those provided in Sections 48-3-5 and 48-3-7 NMSA 1978 hereof shall become void, if the person entitled to the same shall consent that the property subject thereto be removed from his control or possession, except as against the person at whose request the repairs or parts were furnished and the labor performed. In the case of the liens provided in Sections 48-3-5 and 48-3-7 NMSA 1978, if the person or persons entitled to the lien consent to a removal of the property subject to the lien from the leased premises the lien shall become void.

History: Code 1915, § 3339, enacted by Laws 1917, ch. 65, § 1 (3339); 1923, ch. 24, § 1 (3339); C.S. 1929, § 82-407; 1941 Comp., § 63-307; 1953 Comp., § 61-3-7.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Compiler's notes. — The 1917 law amended Code 1915, 3333 to 3345. That part of the Amendatory Act which bore the number 3339 contained entirely new matter. For the original Code 1915, 3339, see 48-3-7 NMSA 1978.

Mortgagee's authority required to create superior lien. — A mortgagor may not, without the authority of the mortgagee, expressed or implied, create a lien on mortgaged property as to give it precedence over prior encumbrances. Maulhardt v. J.D. Coggins Co., 1955-NMSC-086, 60 N.M. 175, 288 P.2d 1073.

Implied authority to create superior lien. — When a mortgage clause requires the mortgagor to keep the mortgaged chattel in a good state of repair, authority is implied from the mortgagee to the mortgagor to create a mechanic's lien superior to the lien of the mortgagee. Maulhardt v. J.D. Coggins Co., 1955-NMSC-086, 60 N.M. 175, 288 P.2d 1073.

Exclusive possession by mechanic of chattels undergoing repairs is not essential to the creation of a lien. Maulhardt v. J.D. Coggins Co., 1955-NMSC-086, 60 N.M. 175, 288 P.2d 1073.

Unrecorded liens lost by sale to innocent purchaser. — A landlord's agistor's lien on cattle is lost by a sale by the tenant to a purchaser without notice of the lien where the lien is not recorded and there is no statute requiring that it be recorded. Bell v. Dennis, 1939-NMSC-045, 43 N.M. 350, 93 P.2d 1003.

Exclusive possession by mechanic of chattels undergoing repairs is not essential. — The lien of a garage owner for repairs furnished and of a workman for labor performed on an automobile is in force after possession of such automobile is voluntarily surrendered, only as to such owner and those with notice thereof, and is not effective as to innocent purchasers without notice. Abeytia v. Gibbons Garage, 1920-NMSC-064, 26 N.M. 622, 195 P. 515.

Waiver of repossession by voluntary parting with chattel. — A lien claimant by voluntarily parting with possession of a chattel upon which he has a lien does not thereby waive the lien, but waives the right to possession thereof, and may not repossess the same merely on strength of lien in absence of special circumstances showing he is entitled to possession. Mathieu v. Roberts, 1926-NMSC-025, 31 N.M. 469, 247 P. 1066.