Dallemand v. Mannon

• Citation: 35 P. 679,4 Colo.App. 262
• Parties: DALLEMAND et al. v. MANNON.
• Decision Date: 22 January 1894
• Court: Court of Appeals of Colorado

35 P. 679

4 Colo.App. 262

DALLEMAND et al. v. MANNON.

Court of Appeals of Colorado

January 22, 1894

Error to district court, Ouray county.

Action by Robert Dallemand, M. Oberfelder, and J. Edoff, as partners under the firm name of Dallemand & Co., against P.C. Hargis and Sam V. Mannon. To a judgment releasing the homestead of defendant Mannon from the levy of an attachment, plaintiffs bring error. Affirmed.

Story &amp Stevens, for plaintiffs in error.

E.I Stirman, for defendant in error.

THOMSON J.

On the 29th day of January, 1892, the plaintiffs in error brought their action against P.C. Hargis and S.V. Mannon, in which summons was issued and served on the defendant Mannon. On the 5th day of March, 1892, a writ of attachment was issued in the cause, which was levied upon certain real estate in Ouray county as the property of Mannon. On the 11th day of April, 1892, Mannon filed his petition in the cause, together with an affidavit supporting it, claiming the land levied upon as a homestead, and praying its release from the levy. On the 12th day of April, 1892 the plaintiffs answered the petition. From the petition, affidavit, and answer, the following facts appear: On the 4th day of September, 1884, Mannon entered the tract of land, of which that levied upon is a part, in the United States land office, and received, in pursuance of his entry, a receiver's duplicate receipt, which, on the 10th day of October following, he caused to be recorded in the office of the recorder of Ouray county. On the 6th day of December, 1884, by an instrument which was in form a deed, but was in fact a mortgage, he conveyed the tract to one Begole, to secure an indebtedness from him to Begole of $1,000. On the 31st day of May, 1886, he paid this indebtedness, and received from Begole a quitclaim deed for the property. On January 14, 1887, Mannon caused the word "Homestead" to be entered of record on the margin of the record of the receiver's receipt, which marginal entry was signed by him, and attested by the clerk and recorder, together with the date and time of day upon which the marginal entry was made. After the homestead record was made, Mannon sold and conveyed to different parties certain undivided interests in the tract, and made a lease of the residue for a term of years, excepting the dwelling house occupied by him, the land upon which it was situated, and another small portion of the tract. The attachment was levied upon the interest remaining in Mannon at the time of the levy, which was worth about $500. At the time the homestead record was made, Mannon was the head of a family, living upon and occupying the land, and continued to live upon and occupy it, together with his family, down to the time of the levy. On the 10th day of March, 1892, Mannon sold and conveyed his entire remaining interest. Upon the hearing, the court granted the prayer of the petitioner, and discharged the attachment levy. This ruling is assigned for error.

The contention of plaintiffs is: First, that a receiver's duplicate receipt is not such an instrument as is authorized by law to be recorded; that, as Mannon had conveyed the land to Begole, who had afterwards reconveyed it to him, the recording of the deed from Begole was the first legal record of his title; that the homestead entry should have been made on the margin of the record of that deed; and that, the entry having been made on the margin of the record of the receiver's receipt, it was a nullity. And, second, that the several conveyances, and the lease made by him, subsequent to the record entry, constitute an abandonment of the homestead exemption. A receiver's duplicate receipt is simply a certificate of the entry and purchase of the land it describes, and is, by statute, made evidence of title in the person making the purchase, his heirs and assigns. Gen.St. § 1310. Section 215 makes provision for the recording of "all deeds, conveyances, and agreements in writing of, or affecting title to, real estate or any interest therein." A receiver's certificate is, in effect, an agreement on the part of the United States to issue to the purchaser a patent for the land purchased in consideration of the purchase price, and as such would, by the terms of the section, be entitled to record. The record of this certificate would therefore be the recorded title, upon the margin of which the word "Homestead" might be entered, so as to give the owner the benefit of the homestead act. Where a party, after acquiring title to land, conveys it in such manner that his title is extinguished, and it subsequently returns to him by independent conveyance, if he then desires to avail himself of the benefits of the homestead law, it is questionable whether he should not use the record of the later conveyance for that purpose. The language of the statute on the subject is entirely general, and its proper construction, with reference to the particular recorded title which should be used, may be open to argument; but there is nothing in this case which demands a decision of the question. The deed from Mannon to Begole, although in form absolute, was in fact but a mortgage, and possessed only the attributes of a mortgage. It was given as security for a debt. It was not a relinquishment of title, but an incumbrance upon it. In like manner the quitclaim from Begole back to Mannon was only a release of the mortgage. Being a mortgage, although in form a conveyance, until forfeiture it was a security merely, which conferred no right of entry upon the mortgagee. Drake v. Root, 2 Colo. 685. This being the case, the release from Begole was no part of Mannon's recorded title, within the meaning of the law; so that, in so far as we are advised, the only title which he had, and upon the margin of which he could make the statutory entry, was the receiver's receipt. We are of the opinion that this receipt, as his evidence of title, was properly recorded, and that the entry made by him on the margin of its record was a fulfillment, on his part, of the requirements of the law, and entitled him to its benefits.

It appears that, at the time of the levy, the only interest in the land which remained in Mannon was an undivided one-fourth, and that he was then a tenant in common with the persons owning the other three-fourths. It is urged that by the sale of the undivided interests, and the making of the lease, the homestead exemption was destroyed. If this is true, it is because the acquisition of a homestead right in lands which the claimant does not hold...