The action shall be prosecuted in the real names of the parties, and shall be brought against the tenant in possession, or against the person under whom such tenant holds or claims possession. Any person claiming such premises may, on motion, be made a defendant.
History: C.L. 1897, § 2685 (252), added by Laws 1907, ch. 107, § 1 (252); Code 1915, § 4362; C.S. 1929, § 105-1803; 1941 Comp., § 25-804; 1953 Comp., § 22-8-4.
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Cross references. — For action prosecuted by real party in interest, see Rule 1-017 A NMRA.
Determination of necessary party. — Any person having an interest adverse to plaintiff, or claiming title or right of possession, may be made a defendant, but such a person may, or may not, be a necessary party, the rule being subject to the principle that only persons in actual occupation are necessary parties. Latin Am. Council of Christian Churches v. Leal, 57 N.M. 502, 260 P.2d 697 (1953).
One in actual occupation, necessary and proper defendant. — Generally, in an ejectment action the person in actual occupation or possession is a necessary and proper defendant, and no other person is a necessary or proper party defendant. Latin Am. Council of Christian Churches v. Leal, 57 N.M. 502, 260 P.2d 697 (1953).
Action of ejectment against cotenant. — Ejectment lies against a cotenant, or a grantee of a cotenant, attempting to hold adversely to his cotenant. Prior possession, under such circumstances, is sufficient to maintain ejectment. Lasswell v. Kitt, 11 N.M. 459, 70 P. 561 (1902); Lockhart v. Leeds, 10 N.M. 568, 63 P. 48 (1900), rev'd on other grounds, 195 U.S. 427, 25 S. Ct. 76, 49 L. Ed. 263 (1904).
Tenant in common may sue separately in ejectment and may recover possession of the entire estate in subordination to the rights of his cotenants, if the defendant shows no title. De Bergere v. Chaves, 14 N.M. 352, 93 P. 762 (1908), aff'd, 231 U.S. 482, 34 S. Ct. 144, 58 L. Ed. 325 (1913).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Ejectment §§ 1, 26, 27, 28.
28A C.J.S. Ejectment § 50 et seq.
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