A. In the event partition of the cotenancy is made by the commissioners appointed, the costs of partition shall by the court be apportioned among all the cotenants, and the proportion of the costs assessed against each cotenant shall be a lien upon the share of the cotenancy assigned by the commissioners to the cotenant. If partition cannot be made without manifest prejudice to the cotenants and sale of the estate is ordered, the costs of the action shall be apportioned among all the cotenants, and the proportion of the costs assessed against each cotenant shall by the court be deducted and withheld from the distributive share of the proceeds of the sale assigned to the cotenant.
B. As used in this section "costs" includes expenses incurred by commissioners, expenses incurred by agents or masters appointed by the court to conduct a sale, costs of survey and other costs incurred in physical partition or in sale which to the court seem just and proper.
C. The reasonable attorney fees of a party to an action for partition of a cotenancy may be awarded in the court's discretion, as it may deem just and equitable.
History: 1953 Comp., § 22-13-7.1, enacted by Laws 1965, ch. 31, § 1.
Request to award attorney fees denied. — Section 42-5-8C NMSA 1978 permits the discretionary award of attorney fees of a party to an action for partition of a cotenancy. Absent an abuse of discretion,a court's denial of fees will not be disturbed. The award of attorney fees under Section 42-6-11 NMSA 1978 is mandatory only when the suit is favorably determined for the party trying to establish title to the subject property. Landskroner v. McClure, 1988-NMSC-091, 107 N.M. 773, 765 P.2d 189.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 59A Am. Jur. 2d Partition §§ 133 to 148.
Excessiveness or adequacy of attorneys' fees in matters involving real estate - modern cases, 10 A.L.R.5th 448.
68 C.J.S. Partition §§ 234 to 239, 242 to 245.
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