57 Colo. 358 | Colo. | 1914
delivered the opinion of the court:
This is a writ of error to review a judgment of the Court of Appeals, affirming a judgment of the District Court of Larimer County in an action for possession of real property located in that county, prosecuted by the present defendant in error against the plaintiff in error. The opinion of the Court of Appeals is reported in 21 Colo. App. 13.
On August 20, 1900, one Mrs. Taylor, who was then the actual owner of the property by deed duly recorded, executed a written contract of sale thereof to T. C. and Clara Brolliar. On July 8, 1903, the Brolliars assigned in writing their interest in this contract to the defendant in error, who went into possession of the premises. On August 27, 1903, the latter, in writing, assigned her interest in the contract to one Lindenmeier. This assignment must be regarded as a bona fide transaction, for the lower court so found upon sufficient evidence.
Neither the contract nor the assignments thereof were recorded until April 6, 1905. On June 27, 1904, Mrs. Taylor conveyed the property by deed to-Lindenmeier, which deed was recorded on September 19, 1905. On February 4, .1905, Lindenmeier conveyed the property by deed to the defendant in error, which was also recorded on September 19, 1905. On August 28, 1903, an execution issued on a judgment obtained by George Salisbury against the defendant in error in the District Court of Pueblo County, and, on September 3, 1903, was levied on the property in Larimer County. It is to be
Oh the 12th' day of November, 1903, the property was sold on this execution to Greorge Salisbury, to whom the sheriff issued a certificate of sale, which was recorded on November 16th, 1903. In due time, a sheriff’s deed was issued to the plaintiff in error, to whom the sheriff’s certificate of sale had been assigned, and the sheriff’s deed was recorded on August 16, 1904, and she went into possession of the property.
No claim is made that either Greorge Salisbury or the plaintiff in error had, at the time of the levy and sale under execution, any notice of the assignment to Lindenmeier of the contract executed by Mrs. Taylor on August 20, 1900, and it affirmatively appears from the record that they had not such notice. It thus appears that before the levy and sale under the execution, the defendant in error had attempted to assign whatever interest she may have had to Lindenmeier, and if that assignment was effective she had no interest at the time of the levy and sale. Plaintiff in error says that by reason of section 694 Rev. Stat. 1908, she was a subsequent bona fide purchaser, and the assignment to Lindenmeier had no effect as to her, it not having been filed for record, and she and Greorge Salisbury being without notice thereof. The learned Court of Appeals held that the statute mentioned was not applicable and that the plaintiff in error took nothing by her sheriff’s deed because the defendant in error had no interest in the property at the time of the levy and sale, and also for the reason, as is said, that the statute does not apply to the assignment of such an instrument as the contract of sale. Sec. 694 is as follows:
“All deeds, conveyances, agreements in writing of, or affecting title to real estate or any interest therein, * * * may be recorded in the office of the recorder of the county wherein such real estate is situate, and from and after the filing thereof fqr record in such office and not before, such deeds, bonds and agreements in writing shall take effect*361 as to subsequent bona fide purchasers and encumbrancers by mortgage, judgment or otherwise not having notice thereof.”
In view of the opinion of this court, in McFarran v. Knox, 5 Colo. 217, the Court of Appeals erred in its holding as will be shown by comparison of that case with the present one. It will also be shown, however, that the plaintiff in error did not acquire the fee simple title to the property and is not entitled to retain possession. The facts in the McFarran case appear in the complaint to which a demurrer had been sustained. For the purpose of comparison, we will state the facts of that case, and after the names there we will place in parentheses the names in this case so as to show the similarity of the facts.
Eose (Taylor), the owner of the property, executed a written contract for the conveyance thereof to Kettle-well (Broillars). Kettlewell (Broillars) assigned this contract to McGovney (La Fitte), who went into possession. McGovney (La Fitte) assigned it to Knox (Lindenmeier). The assignment to Knox (Lindenmeier) was not recorded at the time Of the levy and sale under the execution on McFarran’s (Salisbury’s) judgment, and McFarran (Salisbury) had no notice of it. The two cases differ in that McFarran filed an abstract of his judgment for record after McGovney had assigned to Knox, which then became a lien on the land, while it does not appear that a transcript of the judgment was filed in this case. This difference is immaterial, for the filing of the abstract only marked the inception of McFarran’s lien. Here, Salisbury’s right had its inception at the time of the levy or sale, and when he was without notice of the assignment to Lindenmeier. McFarran also, at the time of the levy and sale, had no notice of the assignment to Knox, so that had his rights begun with the sale the result would have been the same. —McMutrie v. Riddell, 9 Colo. 497, 13 Pac. 181.
In the McFarran case, as here, the contract of conveyance was not recorded. It was held in that case
If a certificate of levy, under an execution from one county on land in another, is filed in the recorder’s office of the county wherein the land is situate, as must be
The contract of conveyance from Taylor provided that if the contractees therein should first make the payments and perform the covenants mentioned, Mrs. Taylor agreed' to sell and convey to the contractees in fee simple, by good and sufficient deed of conveyance, all the land described in the contract, which is the land in controversy. The purchase price was to be paid in small monthly installments, which would run through a number of years. These installments were evidenced by promissory notes payable respectively on the 20th of each month thereafter, and the last one was payable on November 20, 1904. Among other things, it was provided in the contract that time was the essence thereof, and in the event of the nonpayment of said installments, or any part thereof, promptly at the time limited, then Mrs. Taylor was absolutely discharged at law and equity from any and all liability to make and execute a deed, and she might treat the contractees as tenants holding over after the termination or contrary to the terms of their'lease. It was further stated that, in the event of the nonpayment of the purchase money, as provided, all payments should be forfeited, and retained as liquidated damages, and Mrs. Taylor might have the right to reenter and take possession of the premises; and it was further stated that, if at any time the contract should be forfeited and determined, as provided, the contractees agreed to surrender and deliver up the premises peaceably, and that if they remained in possession of the premises thereafter, they should be deemed guilty of a forcible detainer of the same and subject to all conditions and provisions stated, and to eviction and removal
At the time of the levy and sale, all payments of the purchase price had not been made. A considerable portion thereof remained unpaid — in fact was not yet due. The rights of the defendant in error, at the time, were to have possession of the premises, perform the agreements, make the payments as provided and then to receive a deed conveying to her the fee simple title to the premises. The plaintiff in error could have obtained no greater interest. She could not have obtained the fee because the fee was in Mrs. Taylor, and the defendant in error was not entitled to it. The defendant in error became the involuntary assignor to the plaintiff in error of the contract with Mrs. Taylor, and all the rights of the defendant in error, in and to the contract, ceased with the execution and delivery of the sheriff’s deed. By reason of the statute, Lindenmeier obtained nothing by the assignment to him because rights of a bona fide subsequent purchaser, without notice, had intervened before his assignment was recorded. The plaintiff in error was the assignee of the contract of conveyance, and it was incumbent upon her to make the payments that had not been made and to perform the covenants and agreements before she would become entitled to a deed conveying the property to her in fee simple. Mrs. Taylor’s deed to Lindehmeier conveyed the interest of the grantor in the premises. Lindenmeier’s deed to the defendant in error conveyed that same interest of Mrs. Taylor.
In her complaint, in the present case, filed on September 25, 1905, the defendant in error alleged that she was the owner of the premises by virtue of a deed from Lindenmeier; that Lindenmeier had become the owner of the premises by virtue of a deed from Mrs. Taylor, and that Mrs. Taylor had become the owner of the premises
After the defendant in error had lost her rights under the contract from Mrs. Taylor, by reason of the sheriff’s sale and "deed, she was under no duty to the Salisbury’s to continue the payments, nor was Lindenmeier. The latter did continue to make them and when completed received a deed from Mrs. Taylor. He had a right to purchase Mrs. Taylor’s interest, subject, of course, to the rights of the Salisbury’s under the contract, which had been acquired by the sheriff’s sale and deed. The defendant in error had the right to acquire M.rs. Taylor’s interest, subject to the contract, and when she did acquire it, it did not inure to the benefit of the plaintiff in error. The fact that the payments were made by Lindenmeier, or if the defendant in error had made them, in accordance with the contract, is immaterial. Either of them had the right to purchase Mrs. Taylor’s interest and pay for it as they chose satisfactory to Mrs. Taylor. In law, as between the Salisbury’s, and Lindenmeier, and the defendant in error, the contract, from the time of the sale, became the property of the plaintiff in error upon the delivery of the sheriff’s deed. Mrs. Taylor’s interest has never been in any way acquired by the plaintiff in error, nor has she shown that
Had all the payments been made at the time of the inception of the rights of the plaintiff in error; that is, if the defendant in error had been at that time entitled to a deed from Mrs. Taylor, the question presented would be entirely different. Herein, the facts of the present case differ radically "'from those of the McFarran case. In the latter case, the complaint alleged that McGovney was the owner of the premises by virtue of the written contract of conveyance. That was a suit in equity. The allegation was the equivalent of alleging that the payments had all been made, and the other covenants performed, so that McGovney was entitled to a deed and in equity was the owner of the premises. That allegation with the others led this court to say that the complaint stated a cause of action. But, in this case, the plaintiff in error was never the owner of the premises either in law or in equity, by reason of the sheriff’s sale and deed. The interest which she acquired by virtue of the sheriff’s sale and deed was one thing, and that was taken away from the defendant in error, and she became a stranger to the title; but the interest that the defendant in error had at the time she filed her complaint — the Taylor interest — was an entirely different and other interest from that which she had lost by reason of the sheriff’s sale and deed.
The contract provided that if the payments were not made as therein required, Mrs. Taylor or her as
The Court of Appeals also held that a judgment in a former suit, sustaining a demurrer to and dismissing a complaint filed by defendant in error, was not aii adjudication of the matters involved in the present case. In this the court was right. The former judgment was reviewed by this court upon error. — La Fitte v. Salisbury, 43 Colo. 248, 95 Pac. 1065. That action was brought'to annul a revival of the judgment in Pueblo County and to set aside the sheriff’s sale, at which the property involved in this action and other property of the defendant in error was sold. It was sought to set aside the sale because the judgment of revival was void, as was claimed, and because, as was alleged, the property was sold for a grossly inadequate sum. That action related only to the judgment of revival, and the sale on execution. The complaint was filed after the sheriff’s deed had issued, and several months before the deed from Lindenmeier to the defendant in error was executed. All that the judgment determined was that the revival judgment and sale were valid and ought not to be set aside. In the complaint in this action, defendant in error did not mention the revival judgment or sheriff’s sale, or in any manner indicate that she desired to disturb them. In this action she asserted her rights subsequently acquired and which came from Mrs. Taylor. There is no connection between the matter involved in the present action and that which was involved in the former one, except that the plaintiff in error is attempting to hold under the
In the complaint in the former action, the defendant in error alleged that she was the owner in fee of the property mentioned therein, which was the property now in controversy and other property at the time of the sheriff’s deed. The plaintiff in error asserts that the Court of Appeals erred in holding that the defendant in error was not estopped by this allegation. In the opinion of the Court of Appeals, it is said that- the plaintiff in error, in the answer in that action, denied that the defendant in error had any title to the premises, and that if the admission of the plaintiff to the action would estop her, then the denial of the same matter by the defendant in the action would estop her, and the result would be nothing, and the court further proceeds to hold that the allegation could be shown to have been made by mistake. As a matter of fact, the plaintiff in error was not in a position to claim, for any reason, that the defendant in error was the owner of the premises in fee at the time of the sheriff’s sale, for her answer in this present case shows that the defendant in error was not such owner. The plaintiff in error is surely bound by the allegations in her answer. In that answer, by way of cross-complaint, she alleged the sheriff’s sale; the issuance of a sheriff’s certificate to George Salisbury; the assignment of that certificate to herself; that the sale was made under an execution issued on the Pueblo judgment; the agreement from Mrs. Taylor to the Broillars, and its assignment to the defendant in error and by her to Lindenmeier; that Lindenmeier never paid anything for the assignment; that it was kept secret with an intent to swindle the plaintiff in error out of the property, and was not recorded; that Lindenmeier received the warranty deed from Mrs. Taylor after the defendant in error had paid for the land, according to the agreement, with the intent of holding the title to the
Under such circumstances, the right of the owner or her grantee to re-enter and take possession of premises against a defaulting vendee, under such a contract as that of Mrs. Taylor, is certainly complete. When the deeds were recorded she had notice where the Taylor interest
Plainly, under the pleadings in this case and under the evidence, the defendant in error is entitled to possession of the property, and the judgment is affirmed.
Judgment affirmed.
Mr. Justice Hill and Mr. Justice Bailey concur: