4 Colo. App. 179 | Colo. Ct. App. | 1893
delivered the opinion of the court.
Very recent decisions of this court determine the questions involved in favor of the appellants. The statute giving the right of action for treble damages in certain cases received very full consideration in a case decided at the present term. Madera v. Holdredge, ante, 126. It was there decided, following the cases of Harrington v. Smith et al., 14 Colo. 376; Behymer v. Cook, 5 Colo. 395, that wherever a levy was made on exempt property, and it was established by the record that what was seized was all the exemptioner owned, the seizure was illegal, regardless of any claim or assertion of right by the attachment defendant. The duty of selection only rests on the defendant where he has other property than what is claimed to be exempt. The court below did not depart from these well established rules in its instructions to the jury; but it declined to charge the jury as to the legal effect of the mortgage, and the acts of the
If these principles are applicable to the present case, they are decisive of the controversy, and compel us to reverse the judgment. While the issue as to the title was not very cleanly and clearly presented by the pleading, still there was such a denial of the plaintiff’s right and ownership that testimony might, unless objection was raised, be introduced to show what the facts were concerning the maturity of the mortgage, and the mortgagee’s rights. No objection of any sort was made to the proof offered on this subject, and it very clearly appeared that there was an outstanding valid mortgage held by Mumford on the identical property seized by the officer. The proof was very satisfactory that the mortgagee did all that he was able or that was necessary to assume possession of the property prior to the time the sale occurred. Both Wright, the present claimant, and Mumford, the mortgagee, testified there was a breach in the condition, that Wright surrendered so far as he could, and Mumford assumed control of the property. From these facts it is evi- • dent that the title to the property was no longer in Wright, the exemptioner, but had become absolutely vested in the mortgagee, who must be taken, under the present proofs, to have been in the possession and control of the property at
For the error committed by the court in failing to submit this matter to the jury, and to give the instruction asked, this judgment must be reversed and the case remanded.
Reversed.