14 Colo. 536 | Colo. | 1890
delivered the opinion of the court.
These appeals are considered together, as the view of the court, hereafter expressed, is decisive of both.
It is unnecessary to critically analyze the pleadings. The answer contains many supposed denials, and it also sets up supposed affirmative defenses. But we shall address ourselves to the question whether or not the facts that appear in the pleadings, without proper contradiction, warranted the decree rendered by the court below. If we shall discover that the decree was proper under the pleadings as they stood at the time it was rendered, no error was committed by the court in its ruling upon the demurrer to the second defense.
Though the mortgage originally described eight lots, the^ sale to a third party in satisfaction of a prior trust-deed entirely divested of its value the mortgagees’ lien upon the four lots sold; and their security was narrowed to the remaining four lots, which alone are the subject of the present controversy.
Appéllant relies upon the doctrine of equitable estoppel, i. e., an estoppel created by the conduct of appellees. His position is that appellees, by levying execution upon and selling the mortgaged lots, waived their right to enforce the mortgage lien as against him or his vendor; but he cites no case that recognizes such waiver or estoppel under circumstances similar to those before us.
By statute in this state, the mortgagor’s interest in land is expressly made subject to execution sale; and there is no doubt but that a stranger to the mortgage might have levied his execution upon the premises in question, and have sold the same to satisfy his judgment. The mortgage lien would not, in such case, have been divested, and the purchaser would have taken title subject thereto. To all intents and purposes, after the issue of the sheriff’s deed, he would step into the shoes
The mortgagee must not make a fraudulent use of his superior lien, secrete its existence, or otherwise mislead others to their disadvantage; but the mere isolated fact that he, instead of another, subjects his mortgagor’s remaining interest to judicial sale in satisfaction of an independent debt, does not of itself work the estoppel contended for.
The acts of appellees do not constitute a fraud in law; and we scan the record before us in vain for such indicia of fraud in fact as will sustain appellant’s contention.
Appellees do not appear to have done anything, either by word or act, or by omission to speak or act, tending to mislead or deceive appellant. Their mortgage ■was regular in form. It correctly described the property, and was duly recorded. Thus all parties were visited with constructive notice of its existence, and the lien created thereby. It was not released of record, and nothing was said or done by appellees to fairly justify an inference that the mortgage notes had been paid. On the contrary, the complaint avers that appellant had notice, when he purchased, that the foreclosure suit was pending. The denial that his vendor, Bentley, had “legal notice” thereof, “so as in any way to affect * * * the title derived,” etc., was no denial, even as to Bentley.
We fail to discover in these transactions the essential elements of an equitable estoppel. Defining such ele
The judgments of the court below in both cases are affirmed.
Affirmed.
Mr. Justice Elliott not sitting.
