If the defendant, or any of them, shall appear and disclaim all right and title adverse to the plaintiff, he shall recover his costs, and in all other cases the costs shall be in the discretion of the court. If the defendant or any one of them fails to appear and answer, the court may render decree against such defendant so failing to appear in accordance with the prayer of the bill of complaint, or such other decree in the premises as to the court shall appear meet and proper.

History: C.L. 1897, § 2685 (275), added by Laws 1907, ch. 107, § 1 (275); Code 1915, § 4393; C.S. 1929, § 105-2007; 1941 Comp., § 25-1307; 1953 Comp., § 22-14-7.

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

Cross references. — For payment of costs, see 39-2-2 NMSA 1978 et seq.

For recovery of costs in clearing title where mortgage not released, see 48-7-5 NMSA 1978.

For default, see Rule 1-055 NMRA.

Pleading which denies jurisdiction facts, title, etc., not disclaimer. — A pleading by defendant in a suit to quiet title to land is not a disclaimer where it denies jurisdictional facts, denies plaintiff's title, prays for general relief, and does not entitle defendant to dismissal and cost. Corman v. Cree, 100 F.2d 486 (10th Cir. 1938).

Effect of community property. — While plaintiff out of possession may maintain suit in federal court to quiet title against defendant out of possession, in such action against husband and wife, she is not entitled to a dismissal with costs on ground that her answer was a disclaimer, where husband asserted claim to life interest in land acquired through coverture, for this constituted it community property, in which wife had a present vested interest equal to her husband. Corman v. Cree, 100 F.2d 486 (10th Cir. 1938).

When awarding of costs within court's discretion. — Under this section, if it is not contended that the defendant's disclaimed, the awarding of costs is in the discretion of the trial court. Hughes v. West, 1967-NMSC-181, 78 N.M. 281, 430 P.2d 778.

Costs awarded in case of fraudulent claim. — In an action to quiet title to property, where a claim was based upon a document expressly found to have been forged by defendant, the trial court's order denying an award of costs for plaintiff's expert witness and imposition of sanctions against defendant was reversed and remanded for reconsideration. Martinez v. Martinez, 1997-NMCA-096, 123 N.M. 816, 945 P.2d 1034.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 65 Am. Jur. 2d Quieting Title §§ 89, 93.

74 C.J.S. Quieting Title §§ 95, 104, 110 to 112, 114.