The execution shall be against the goods, chattels and lands of the defendant against whom the judgment, order or decree shall be rendered: provided, that executions from justices of the peace [magistrate courts] shall not go against lands.

History: Kearny Code, Executions, § 2; C.L. 1865, ch. 34, § 2; C.L. 1884, § 2158; C.L. 1897, § 3106; Code 1915, § 2191; C.S. 1929, § 46-102; 1941 Comp., § 21-102; 1953 Comp., § 24-1-2.

Cross references. — For rules governing garnishment and writs of execution in the district, magistrate, and metropolitan courts, see Rules 1-065.1, 2-801, and 3-801 NMRA, respectively.

For form for claim of exemptions on executions, see Rule 4-803 NMRA.

For form for order on claim of exemption and order to pay in execution proceedings, see Rule 4-804 NMRA.

For form for application for writ of garnishment and affidavit, see Rule 4-805 NMRA.

For form for notice of right to claim exemptions from execution, see Rule 4-808A NMRA.

For form for claim of exemption from garnishment, see Rule 4-809 NMRA.

Bracketed material. — The bracketed reference to "magistrate courts" was inserted by the compiler, as the office of justice of the peace has been abolished by 35-1-38 NMSA 1978, which provides that reference to "justices of the peace" shall be construed to refer to the magistrate courts. The bracketed material was not enacted by the legislature and is not part of the law.

Property affected by execution. — The execution provided for in this section and 39-4-1 NMSA 1978 is one which may run against the property of the defendant generally, and is not one for the enforcement of liens upon specific property, such as mortgages and the like. Crowell v. Kopp, 1919-NMSC-065, 26 N.M. 146, 189 P. 652.

Lien not necessary. — The existence of a lien is not a prerequisite to a sheriff's levy and sale of real property. Heimann v. Adee, 1996-NMSC-053, 122 N.M. 340, 924 P.2d 1352.

Liquor license. — As between the state and the licensee, a liquor license is a mere revocable privilege vesting no property rights in the licensee, but, as between the licensee and any other individual, such license is property and as such is subject to levy and sale under execution. Nelson v. Naranjo, 1964-NMSC-209, 74 N.M. 502, 395 P.2d 228.

Process by attachment as for contempt is not execution in contemplation of this section. In re Jaramillo, 1896-NMSC-023, 8 N.M. 598, 45 P. 1110.

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. — 30 Am. Jur. 2d Executions § 113 et seq.

Shares of corporate stock as subject to execution or attachment, 1 A.L.R. 653.

Execution sale of realty as affecting debtor's share in crops grown by tenant or cropper, 13 A.L.R. 1425, 113 A.L.R. 1355.

Seat in chamber of commerce, board of trade, or stock exchange, 14 A.L.R. 285.

Levy upon or garnishment of contents of safety deposit box, 19 A.L.R. 863, 39 A.L.R 1215.

Mortgagor's statutory right to redeem or his right to possession after foreclosure as subject of levy and seizure by creditors, 42 A.L.R. 884, 57 A.L.R. 1128.

Sale of lease under execution as violation of covenant against assignment, 46 A.L.R. 850.

Contingent remainder as subject to sale, 60 A.L.R. 803.

Money or other property taken from prisoner as subject of attachment, garnishment, or seizure under execution, 154 A.L.R. 758.

Interest of spouse in estate by the entirety as subject to execution for individual debt, 166 A.L.R. 969, 75 A.L.R.2d 1172.

Interest of vendee under executory contract as subject to execution, judgment, lien, or attachment, 1 A.L.R.2d 727.

Solid mineral royalty as real or personal property, 68 A.L.R.2d 728.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint depositors, 11 A.L.R.3d 1465.

Family allowance from decedent's estate as exempt from attachment, garnishment, execution, and foreclosure, 27 A.L.R.3d 863.

Furniture: what is "necessary" furniture entitled to exemption from seizure for debt, 41 A.L.R.3d 607.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.

33 C.J.S. Executions §§ 18 to 55.