9 P.2d 618 | Colo. | 1932
W. ED. Wright, Jr., as executor of the estate of W. Ed. Wright, deceased, obtained judgment against B. E. Robinson for possession of personal property. Robinson says that the judgment was erroneous.
On February 9, 1928, an execution was issued out of the district court of Weld county on a judgment against *419 Lacey H. Mathews, and, on the same day, the execution was placed in the hands of Robinson, as sheriff of that county. On March 22 of the same year Wright sold and delivered to Mathews an automobile and a team of mules, taking from him, at the same time and as part of the same transaction, two chattel mortgages to secure the payment of part of the purchase price. The mortgages were recorded on April 10. Four days thereafter Robinson, by virtue of the execution, levied upon the automobile and the mules, taking them from the possession of Mathews. Thereupon Wright brought suit for possession of the property.
[1] 1. At common law an execution bound the debtor's personal property from the time the execution was awarded. 23 C. J. p. 490. To prevent the embarrassment to trade resulting from this rule, an English statute provided that no writ of execution should bind the debtor's property, except from the time of the delivery of the writ to the sheriff. Similar statutes have been passed quite generally in the United States. Id. We have such a statute in Colorado. C. L., § 5913. The lien thus created is not a secret lien, for the statute requires the sheriff, upon receipt of the writ, to endorse thereon, and to enter in a book kept for that purpose in his office, the exact time when the writ was received; and the statute declares that such book "shall be a public record and open to the inspection of the public."
[2] It has been held repeatedly that under the statute an execution lien upon the personal property of the debtor attaches upon receipt of the execution by the sheriff. Williams v. Mellor,
2. Ordinarily an execution lien has priority over chattel mortgage liens and other liens thereafter acquired. See cases cited above. However, counsel for Wright says that there are two reasons why the judgment should be affirmed, notwithstanding the rule just stated. Of these in their order.
(1) It is contended that the lien of the execution became subordinate to the lien of the chattel mortgage by reason of the fact that the execution was permitted to lie in the hands of the sheriff for more than sixty days, without any attempt or effort to make a levy.
[3, 4] The proper office of an execution is to enforce the collection of a judgment, not to create a security. If, because of any direction by, or of any understanding with, the execution creditor, the sheriff delays making a levy upon the debtor's property, the lien is held to be waived during the period of such delay. First NationalBank v. Monte Vista Hardware Co., supra; Doyle vHerod, supra; Ankele v. Elder, supra. There was no such express direction or understanding in the present case. True, where the sheriff delays an unreasonable time to make a levy, it is presumed, in the absence of an explanation for such delay, that the delay was caused by direction of the execution creditor. First NationalBank v. Monte Vista Hardware Co., supra. But in the present case the circumstances reasonably explain the delay in making the levy. Mathews did not acquire the property until March 22. He lived on a farm some distance from the county seat. The chatel [chattel] mortgage was not recorded until April 10; and, so far as the record discloses, that was the first notice the execution creditor had that Mathews owned the property. Four days thereafter the execution was levied. The trial court held that the lien of the execution was not waived. The ruling was right. In the circumstances, the delay was not unreasonable; it therefore raised no presumption that the *421 failure to levy sooner was due to any direction by the execution creditor.
[5, 6] (2) The two chattel mortgages are purchase-money mortgages; and it is said that purchase-money mortgages have priority over prior liens.
We have held that a mortgage of land executed by a purchaser thereof contemporaneously with the acquisition of the title, or afterwards as part of the same transaction, is entitled to preference over all other claims or liens through the mortgagor, even though prior in time.Emery v. Ward,
But counsel for Robinson contend that the rule applicable to real estate mortgages does not apply in the case of chattel mortgages, because real estate mortgages, though not recorded, are valid, not only between the parties, but as to third persons with notice; whereas unrecorded chattel mortgages, they say, are not valid as to third persons, even though they have actual notice thereof, and, therefore, between the giving and the recording of a chattel mortgage there is an interval of time when the purchaser has an unencumbered title to which a prior lien attaches. Blatchford v. Boyden,
[7] In the present case the automobile and mules were acquired after the execution was received by the sheriff. An execution lien attaches not only to property owned at the time the execution was so received, but to property acquired thereafter while the writ is in force. 23 C. J. 494. In this respect, the execution lien in the present case is similar to the lien of a chattel mortgage covering after-acquired property. In Indian Creek CoalMining Co. v. Home Savings Merchants Bank,
In United States v. New Orleans Railroad, 12 Wall. 362,
In Fosdick v. Schall,
We conclude that in the present case the two purchase-money chattel mortgages have priority over the execution lien.
The judgment is affirmed. *425