In the absence of stipulation to the contrary, the mortgagor of real poperty [property] shall have the right of possession.

History: Laws 1876, ch. 36, § 8; C.L. 1884, § 1593; C.L. 1897, § 2365; Code 1915, § 571; 1941 Comp., § 63-401; 1953 Comp., § 61-7-1; Laws 1961, ch. 96, § 11-116.

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

Compiler's notes. — This section was omitted from the 1929 Compilation presumably because it was part of a chattel mortgage act deemed superseded by the provisions compiled as 61-8-1 to 61-8-7, 61-8-9 to 61-8-11, 1953 Comp. (now repealed), but the latter made no reference to real property.

Cross references. — For mechanic's lien with preference over unrecorded mortgage, see 48-2-5 NMSA 1978.

For recording of instruments affecting real property, see 14-9-1 NMSA 1978.

For acknowledgments, see 14-14-1 to 14-14-11 NMSA 1978.

For foreclosure of mortgages, see 39-5-16 NMSA 1978.

For Mortgage Finance Authority Act, see 58-18-1 NMSA 1978 et seq.

For rural electric cooperatives, mortgages, see 62-15-23 NMSA 1978.

"Mortgage" defined. — A mortgage of real estate is simply security for the payment of a debt, leaving the legal title in the mortgagor. Cleveland v. Bateman, 1915-NMSC-090, 21 N.M. 675, 158 P. 648; Stearns-Roger Mfg. Co. v. Aztec Gold Mining & Milling Co., 1908-NMSC-001, 14 N.M. 300, 93 P. 706.

Change of common-law rule. — Common-law rule that mortgagee is entitled to possession of mortgaged property has been changed by this section which, in the absence of any agreement to the contrary, gives the right of possession to the mortgagor until divested by operation of law or by breach of the terms of the mortgage. Kitchen v. Schuster, 1907-NMSC-021, 14 N.M. 164, 89 P. 261.

Law reviews. — For article, "Survey of New Mexico Law, 1982-83: Property Law," see 14 N.M.L. Rev. 189 (1984).

For article, "Mortgages in New Mexico," see 20 N.M.L. Rev. 585 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 54A Am. Jur. 2d Mortgages § 168 et seq.

Validity, construction and effect of provision in real estate mortgage as to rents and profits, 4 A.L.R. 1405, 55 A.L.R. 1020, 87 A.L.R. 625, 91 A.L.R. 1217.

Acceleration clause, effect in mortgage of delay in declaring mortgage due, 5 A.L.R. 437.

Right to receive rents, as between mortgagor and mortgagee of leased premises, 14 A.L.R. 640, 105 A.L.R. 744.

Contract requiring mortgagee to look to property alone for payment, 17 A.L.R. 717.

Right to acceleration clause, reasonable time in which to make payment required by mortgage after acceleration clause becomes effective, 21 A.L.R. 1547.

Effect of acceleration clause on note secured by mortgage, 34 A.L.R. 848, 56 A.L.R. 185.

Rights in abstract of title held by mortgagee, 44 A.L.R. 1332.

Duty of mortgagee in possession to account for use and occupation, 46 A.L.R. 138.

Acceleration clause as affected by cross indebtedness or obligation, 51 A.L.R. 1256, 151 A.L.R. 896.

Acceleration of maturity of mortgage in absence of express provision to that effect, by failure to keep up insurance or to pay taxes or interest, 54 A.L.R. 1230.

Rights and liabilities of purchaser of timber from mortgagor, 57 A.L.R. 454.

Marketability of title as affected by mortgage, 57 A.L.R. 1379, 81 A.L.R.2d 1020.

Grounds of relief from acceleration clause, 70 A.L.R. 993.

Duty of creditor to apply funds so as to prevent operation of acceleration clause, 80 A.L.R. 246.

Mortgagor in possession as liable to receiver for occupational rent, 91 A.L.R. 1236.

Exploitation of oil or gas resources of land by mortgagor, or purchaser or lessee subsequently to mortgage, as waste as against mortgagee, 95 A.L.R. 957.

Invalidity or avoidability of assumption clause in deed as between grantor and grantee as affecting mortgagee's rights, 100 A.L.R. 911.

Acceleration, bankruptcy proceedings as affecting provision for, 108 A.L.R. 1030.

Easement appurtenant to land created subsequent to mortgage of dominant estate, as inuring to benefit of mortgagee, 116 A.L.R. 1078.

Forged or unauthorized mortgage, proceeds of which are used to discharge valid lien, as giving mortgagee equitable lien, 151 A.L.R. 417.

Deed absolute on its face, with contemporaneous agreement or option for repurchase by grantor, as mortgage vel non, 155 A.L.R. 1104.

Delivery of mortgage by one but not all of the mortgagors, 162 A.L.R. 892.

Joining instrument as ratification of or estoppel as to prior ineffective instrument affecting real property, 7 A.L.R.2d 294.

Effect of supplying description of property conveyed after manual delivery to mortgage, 11 A.L.R.2d 1372.

Estoppel of mortgagee from contesting mortgagor's title, 11 A.L.R.2d 1397.

Rights of parties under oral agreement to buy or bid in land for another, 27 A.L.R.2d 1285.

Corporate officers' authority to mortgage corporate personal property, 62 A.L.R.2d 712.

Mortgagor's interference with property subject to order of foreclosure and sale as contempt of court, 54 A.L.R.3d 1242.

What constitutes waste justifying appointment of receiver of mortgaged property, 55 A.L.R.3d 1041.

59 C.J.S. Mortgages §§ 300 to 306.