Ellickson v. Dull, 73--118

• Decision Date: 30 April 1974
• Docket Number: No. 73--118,73--118
• Citation: 521 P.2d 1282,34 Colo.App. 25
• Parties: Oakley ELLICKSON, Plaintiff-Appellant, v. Oscar DULL, Jr. and Juanita Frey Dull, Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 1282

521 P.2d 1282

34 Colo.App. 25

Oakley ELLICKSON, Plaintiff-Appellant, v. Oscar DULL, Jr. and Juanita Frey Dull, Defendants-Appellees.

No. 73--118.

Colorado Court of Appeals, Div. I.

April 30, 1974.

Goodbee & Mason, Wendell R. Goodbee, Colorado Springs, for plaintiff-appellant.

Asher, Kraemer & Kendall, Sandy F. Kraemer, Colorado Springs, for defendants-appellees.

COYTE, Judge.

Plaintiff purchased a tract of land which was conveyed to him by a warranty deed that contained the following exception to the warranty of title:

'. . . except Trust Deed dated February 27, 1970, from Clyde M. Trees and Marlys J. Trees for the use of Cecil M. Ver Duft and O. L. Clark, which grantee assumes and agrees to pay.'

Plaintiff subsequently divided the land into three separate parcels. He sold two parcels and retained one. Title was warranted to both parcels which he sold. Howevre, each deed, at the end of the warranting clause, contained the following provision, 'except . . . a trust deed recorded in Book 2334 at page 434 El Paso County, Colorado, records.' Defendants subsequently acquired title to one of the two tracts sold still subject to the deed of trust.

When plaintiff defaulted in making the payments required to be made on the note secured by the aforementioned deed of trust, defendants purchased the note, released the tract owned by them from the deed of trust, and commenced foreclosure on the lot still owned by plaintiff and on the other lot. Defendants purchased the property at the public trustee's sale for the amount owing on the note which was secured by the deed of trust. Plaintiff then sought to redeem his lot from the sale by offering to make a partial payment to defendants. Defendants refused the partial payment and demanded payment of the entire amount due under the indebtedness. Plaintiff then filed suit seeking an order or court allowing him to redeem partially. After trial to the court on stipulated facts, the court dismissed plaintiff's complaint.

On appeal, plaintiff contends that when defendants acquired the note secured by the deed of trust which covered the three parcels of land, and at the same time was an owner of one of the tracts covered by the deed of trust, plaintiff was then entitled to redeem his tract by paying a proportionate part of the amount owing. We disagree and affirm.

The facts are stipulated. The stipulation shows the various conveyances without detailing the circumstances of sale, consideration for each sale, closing sheets or transfer of funds in each closing. There was no evidence that either of the parties who purchased lots from plaintiff agreed to pay all or any part of the mortgage debt which plaintiff had assumed and agreed to pay. The trial court found that 'there is no fact here that gives rise to intervention of equity to relieve plaintiff of his obligation he assumed', and that 'there is nothing to indicate that the exhibits did not properly carry out the intention of the parties.' The record supports these findings.

The statutory provision providing for redemption from a sale by the...