Birkby v. Wilson

• Decision Date: 20 February 1933
• Docket Number: 13184.
• Citation: Birkby v. Wilson, 92 Colo. 281, 19 P.2d 490 (Colo. 1933)
• Parties: BIRKBY et al. v. WILSON et al.
• Court: Colorado Supreme Court

19 P.2d 490

92 Colo. 281

BIRKBY et al. v. WILSON et al.

No. 13184.

Supreme Court of Colorado, En Banc.

February 20, 1933

Error to District Court, Morgan County; Arlington Taylor, Judge.

Suit by Hohn L. Birkby and others against Chalkley A. Wilson and others, in which defendant named filed a cross-complaint. Decree for defendants, and plaintiffs bring error.

Affirmed.

Alfred W. Dulweber and Lionel Fisher, all of Fort Morgan, for plaintiffs in error.

John F Mail, of Denver, for defendant in error Chalkley A. Wilson.

MOORE Justice.

John L Birkby and others sued Chalkley A. Wilson and others in the district court of Morgan county to quiet the title to certain real estate. The facts were stipulated. Defendants had a decree, a review of which is here sought.

The plaintiffs alleged titled and possession in themselves, and adverse claim in defendants. Wilson answered cross-complained, setting up a valid and unpaid mortgage, and sought affirmative relief. Plaintiffs replied that this mortgage, dated November 20, 1919, securing promissory note due December 1, 1924, was barred by section 6392, C. L. of 1921, and chapter 150, p. 585, Session Laws of 1927 (effective March 28, 1927).

Plaintiffs' title consists of an admittedly void tax deed. The note secured by Wilson's mortgage was more than six years past due at the time this suit was started.

Assuming, but not deciding, because unnecessary, that plaintiffs may raise the question, a single proposition is thus presented: Can Wilson urge his lien to redeem the land from the tax sale? An affirmative answer would be immediately forthcoming were it not for plaintiffs' claim that sections 27 and 42 of chapter 150, pp. 598, 604, Session Laws of 1927, bar this right.

The act is entitled: 'An Act concerning real property and to render titles to real property and to interests and estates therein, more safe, secure and marketable.'

The pertinent provisions of this chapter are:

'Section 16. No lien upon real property created by mortgage, trust deed or other instrument in writing, securing the payment of an indebtedness, shall remain a lien for a period longer than seven years after the last or final payment of the principal of the indebtedness, or the last installment thereof secured thereby, is due and payable. * * *'

'Section 17. Such mortgage, trust deed or other instrument may be extended and the lien and notice thereof renewed and continued in full force and effect in the following manner:

'An instrument in writing signed by the beneficiary or by the owner of the indebtedness secured, clearly describing such mortgage, trust deed or other lien, and setting forth the date to which the payment of the indebtedness has been extended, may be recorded in the office of the recorder of the county wherein the real estate is situate, at any time before the expiration of the seven year period described in the preceding paragraph. Upon the filing for record of such instrument, the lien of said mortgage, trust deed or other instrument, and notice thereof, shall continue and be in full force and effect for the future period of seven years from and after the date when the last or final payment of principal becomes due and payable as set forth in said extension agreement. * * *'

'Section 22. All mortgages, trust deeds or other instruments in writing creating liens as security for the payment of indebtedness, which shall be of record at the time this act goes into effect and in which the last or final payment therein provided shall then be past due, shall, for the purpose of this act, be considered

as becoming due at the time this act goes into effect and the time for payment may be extended within seven years thereafter, in conformity with the provisions of this act; and if not so extended, such mortgages, trust deeds or other instruments shall, seven years after this act goes into effect, cease to constitute notice for any purpose, and thereafter purchasers or incumbrancers by way of mortgage, trust deed, judgment or otherwise, shall be not bound thereby; but nothing herein shall be construed as reviving or renewing any indebtedness barred by any other limitation statute.'

'Section 27. The lien created by any instrument shall be extinguished, regardless of any other provision herein to the contrary not withstanding, at the same time that the right to commence a suit to enforce payment of the indebtedness secured by the lien is barred by any statute of limitation of this state.'

'Section 42. The limitations in this act established shall apply to causes of action which have accrued prior to the time that this act becomes effective as well as to all causes of action accruing hereafter, provided, however, that all persons against whom any new limitation herein created shall have expired at the time this act goes into effect or shall expire within two years thereafter and against whom the previous limitation provided for by law has not expired or to whom the previous limitation did not apply, may commence an action within two years from the date that this act goes into effect and not thereafter, and provided further that this act shall not be construed as reviving any action barred by any former or other statute.'

Section 44 provides that the act 'shall be liberally construed and with the end in view of rendering such titles absolute and free from technical defects, and so that subsequent purchasers and incumbrancers by way of mortgage, judgment or otherwise, may rely on the record title, and so that the record title of the party in possession shall be sustained and not be defeated by technical or strict constructions.'

'Section 51. * * * And all other acts and parts of acts in conflict with or inconsistent with this act are hereby repealed.'

At the time the act of 1927 became effective, Wilson...