232 P. 665 | Colo. | 1925
ON February 21, 1921, S. D. Wixon was the owner in fee of the northwest quarter of section 4, township 11, *393 range 52, in Logan county. On that date he sold the land to A. J. Wixon, taking back a purchase money mortgage in the sum of $4,000. The mortgage instrument, by mistake, described the land as being in section 7, instead of section 4. With such incorrect description, it was recorded on March 19, 1921.
In January, 1922, The Divide Lumber Coal Company obtained a judgment against the grantee of the deed, A. J. Wixon, and filed a transcript of the judgment with the county clerk and recorder. Thereafter S. D. Wixon brought this action to reform the mortgage so as to have it describe the land intended to be mortgaged, and also to foreclose the mortgage as reformed. The Lumber Coal Company sought in this action to have its judgment lien made superior to the lien of the plaintiff's mortgage, and was successful in the court below. The mortgagee, S. D. Wixon, brings the cause here for review. The question to be determined is which one of the two liens above mentioned has a priority over the other.
The plaintiff in error relies upon Emery v. Ward,
The mortgage was good as between the mortgagor and the mortgagee and could be reformed as to them, but not as to the holder of a judgment lien accruing against the mortgagor after the transfer of the real estate in question. The circumstances of this case are analogous to the facts appearing in Davis v. Lutkiewiez,
The situation being as above described, and under the circumstances, the purchase money mortgage being in the same position as any other mortgage, the remaining facts of the case are practically identical with those appearing in Wedman v. Carpenter,
MR. JUSTICE BURKE and MR. JUSTICE CAMPBELL concur. *395