75 Colo. 440 | Colo. | 1924
delivered the opinion of the court.
This is an action by the plaintiff bank against the defendant hardware company for the conversion of the bank’s personal property. The controversy is between a later mortgagee and a prior judgment creditor, each claiming the same property. There was a judgment for the defendant and the mortgagee bank is here with its writ of review. The defendant hardware company recovered a judgment against Fawver Brothers May 2, 1922. On that date an execution was issued and delivered to the sheriff. July 3,
1. The first contention of plaintiff is that under the facts recited there was not a valid levy. There are decisions that if a sheriff leaves property levied upon in possession of the judgment debtor, the levy is not valid. 2' Freeman
The real and important question for decision is whether the statutory lien arising out of the delivery of the execution to the sheriff was lost by unreasonable delay in making the levy. Under the statute of this state an execution is a lien upon personal property of the judgment debtor from the time of the delivery of the writ to the sheriff for service. This lien, however, may be lost or displaced by an act of the judgment creditor indicating that the writ was procured, or-is being used, as a security and not for satisfaction of the judgment. In Williams v. Mellor, 12 Colo. 1, 19 Pac. 839, there is a discussion of this question. The court there said: “When the execution in question came into the hands of the plaintiff in error, it became a lien upon the chattels of the said Walter; (judgment debtor) and a subsequent mortgagee of the said Walter would take subject to the existence of the lien thereon, unless the judgment creditor, Thomas, by some act of his, lost or waived his priority of lien. It is a well-settled principle of the law that a judgment creditor may waive or lose his priority of lien by refusal to enforce the same, thereby simply holding the lien as security for the collection of his debt.”
In the Williams Case the execution was issued June 21. The chattel mortgage was executed on the same day but it was not filed for record until about two hours after the writ of execution was delivered to the sheriff. The mortgagees took possession of the mortgaged property June 26,
There is an additional reason for reversing this judgment in part. The sheriff sold some of the horses included in the chattel mortgage that were not included in the first levy. Even if these horses had been segregated from other similar animals on the ranch at the time, as they were not, no lien thereon was created, because the levy was not made or completed until after the writ of execution had spent its force. The only issue to be tried is as to the value of the property converted.
This judgment was wrong and it must be reversed and remanded with instructions to the trial court that if further proceedings are had, they are to be restricted to the' issue of value as stated and must be consistent with the views expressed in the opinion.
Mr. Chief Justice Teller and Mr. Justice Sheafor concur.