Laughlin v. Hawley

9 Colo. 170 | Colo. | 1886

Elbert, J.

Section 212 of‘the code provides that “a transcript of any judgment rendered by any justice of the peace, duly certified by said justice, may be filed with the recorder of the county in which such judgment shall have been rendered; and from the time of filing such transcript, such judgment shall become a lien upon all the property of the judgment debtor, except personal property and property exempt from execution, in such county, in the same manner and to the same extent as if such judgment had been originally rendered in a court of record. Said lien shall continue for six years from the entry of judgment, unless the judgment be previously satisfied.” The language of this section is plain, and gives the lien upon filing the transcript of the judgment with the recorder.

It is claimed that the clerk and recorder should have recorded and indexed the judgment, and that his failure to do so defeats the lien. The duty of the county clerk and recorder, in this respect, extends only to instruments “authorized by law to be recorded in his office.” Gen. St. §§ 58-60, pp. 266, 267. We find no law requiring or authorizing the transcript of a judgment from a justice of the peace to be recorded or indexed. If the clerk and. recorder should keep any index or record of such judgments, it would be entirely voluntarily. It maybe a great inconvenience, which the legislature should remedy, but, under the law as it stands, one seeking to know if real estate is incumbered by a lien under this section, must inquire for and examine the “files” in the office of the county clerk and recorder of the proper county. Hid the law cast upon the clerk the duty of indexing and recording such judgments, a question of greater difficulty would be presented, concerning which there is much conflict of authority. Barney v. McCarty, 15 Iowa, 510, and cases there cited.

When, on the 18th day of April, 1819, Lake and Hawley procured a transcript of their judgment before the justice, and filed the same in the office of the clerk and recorder in Gilpin county, they did all that was required of them under this section. Thereafter their judgment was a lien upon the real estate of Rollins, and took precedence over the subsequent transfer to the appellant Laughlin. The sheriff’s deed to the appellee took effect, by relation, as though made on the day when the lien was created. Freem. Ex’ns. § 333. If the county clerk made false representations to the appellant respecting the judgment on file in his office, or refused him access to the “files” for the purpose of examination, it is a matter between him and the clerk, with which appellee has no concern.

The objection that the return of levy, certificate of sale, and the sheriff’s deed wei’e void for uncertainty in the description of the property was not well taken. Where the description of the property is hi such general terms as to call for evidence dehors the writing, parol evidence is admissible to apply it to the subject-matter, and thereby render certain what would otherwise be doubtful and indefinite. “If, from such evidence, it appears that the terms used, as commonly understood in the neighborhood, clearly designate the property levied upon or sold, the description must be regarded as sufficient.” Freem. Ex’ns, § 281; Pipe v. Smith, 4 Colo. 466. The description of the property in the complaint, return of levy, certificate of sale, and sheriff’s deed is substantially the same. That there was no difficulty in identifying the property by persons familiar with it, from the description given, is evident from the defendant’s answer and testimony. The defendant admits in his answer that the property described in the plaintiff’s complaint is a part of the one hundred and sixty acres leased by him to his co-defendants. He testifies: “I am one of the defendants. I purchased the ranch described in plaintiff’s complaint from Alfred Rollins, in October, 1880. The deed was recorded in the recorder’s office, October 26,1880. I was in possession at that time. I exchanged a house and lot in Silver Plume for the ranch, that cost me $600. I have owned it ever since, — claim to own it now. I have one hundred and sixty acres in all. I gave a lease to my co-defendants for a year from the 9th of May, 1882. They have been in possession under it since that time. There are three patented lodes on the ranch, and several unpatented. It was reported as mineral land not subject to pre-emption as agricultural land. Only a few acres can be tilled. * * * Rollins was in possession several years before I.bought, and I and my lessees have been in possession ever since.” This sufficiently removed all grounds for the-objection made.

The instructions given by the court were substantially correct; nor is there anything in the other errors assigned requiring notice.

The judgment of the court below is affirmed.

Affirmed.