Floyd v. Sellers

• Decision Date: 09 March 1896
• Docket Number: 1,144
• Citation: 7 Colo.App. 498,44 P. 373
• Parties: FLOYD et al. v. SELLERS.
• Court: Colorado Court of Appeals

44 P. 373

7 Colo.App. 498

FLOYD et al. v. SELLERS.

No. 1,144

Court of Appeals of Colorado

March 9, 1896

Appeal from district court, Boulder county.

Action by John A. Sellers against Charles O. Floyd and others to quiet title. From a judgment for plaintiff, defendants appeal. Reversed.

J.R Zuver, for appellants.

Adams &amp Adams, for appellee.

THOMSON J.

This is an action by John A. Sellers against Charles O. Floyd, J.M Beach, and Lewis L. Wadsworth to quiet the title of the plaintiff in the Empress lode against claims set up by the defendants to the same property. The record discloses that the real defendant is Floyd, and that the others were made parties principally for the purposes of a temporary injunction. The complaint alleges title in the plaintiff by virtue of a sheriff's sale and conveyance under a judgment recovered by Elson S. Bishop against Samuel Cochran and the Boston & Colorado Gold & Silver Mining Company, and avers that Floyd claims to be the owner of the property by virtue of a sheriff's deed executed pursuant to a sale under a judgment in his own favor against the same parties, from which sale the property was redeemed by Cochran within the statutory period, and before execution of the deed to Floyd. The facts concerning the execution of both deeds and the redemption by Cochran will be found in Floyd v. Sellers, 44 P. 371. We there held the deed to Sellers good, and that to Floyd inoperative and invalid; and, if the questions considered in that case were the only ones involved in this, our duty would be confined to a reiteration of that decision. In that case Floyd, as plaintiff, sought the annulment of Cochran's redemption, and the affirmance of his own title; and Sellers, having caused himself to be made a party defendant, filed an answer, and also a cross complaint praying a decree sustaining his title. At the hearing the court dismissed his cross complaint without prejudice, giving judgment generally against Floyd; and this complaint is substantially that cross complaint, as the foundation of an original proceeding. The prayer here is that the title of the plaintiff be adjudged good and valid, and that the defendants be forever barred from asserting any right or interest in the property. There was a decree in accordance with the prayer, from which the defendants have appealed.

The answer of Floyd, in addition to the matters set forth in his complaint in the former action, averred the ownership by him of certain judgments recovered against the Boston & Colorado Gold & Silver Mining Company, which, either by virtue of attachments duly levied, or by virtue of transcripts filed with the recorder, were liens upon the land, and which were averred to be wholly unsatisfied. The case was submitted upon certain stipulated facts, among which are the following: "That on the 6th day of July, 1892, Whitney & Metcalf commenced an action by attachment against the Boston & Colorado Gold & Silver Mining Company, the sole and only record title owner of the property in controversy, and upon said day and year had an attachment duly issued and levied upon said property, and said levy duly filed with the county clerk and recorder of Boulder county, Colorado; that on the 8th day of October, A.D.1892, said Whitney & Metcalf duly recovered a judgment in said action in the county court of Boulder county, Colorado, sustaining said attachment, and for $193.25, and $33.49 costs of suit; that on the 20th day of November, 1894, said Whitney & Metcalf, for a valuable consideration, duly sold and assigned said judgment to Charles O. Floyd, a defendant herein; that said judgment now remains in full force and effect, and is wholly unsatisfied, and no execution has ever been issued upon said judgment; that on the 26th day of August, 1892, the defendant herein, Charles O. Floyd, duly recovered a judgment of the county court of Boulder county, Colorado, against the Boston & Colorado Gold & Silver Mining Company for $682, and $31.80 costs; that on the 29th day of August, 1892, he filed a transcript of said judgment in the office of the county clerk and recorder of Boulder county, Colorado; that said judgment now remains in full force, and is wholly unsatisfied, except as satisfied by a sale of the property in controversy on the 8th day of December, A.D.1894, under an execution duly issued thereon; that on the 10th day of October, 1892, the defendant herein, Charles O. Floyd, duly recovered a judgment of the county court of Boulder county, Colorado, against the Boston & Colorado Gold & Silver Mining Company for $281.30, and costs taxed at $14.10; that on the 12th day of October, 1892, he duly filed a transcript of said judgment in the office of the county clerk and recorder of Boulder county, Colorado; that said judgment is now in full force and wholly unsatisfied, except by a sale of the property in controversy upon the 8th day of December, 1894, upon an execution duly issued thereon; that on the 18th day of March, 1892, the First National Bank of Boulder, Colorado, commenced an action by attachment against the Boston & Colorado Gold & Silver Mining Company, the sole and only record title owner of the property in controversy, and, upon said day and year, had a writ of attachment duly issued therein, and duly levied upon the property in controversy, and upon said 18th day of March, 1892, had said levy duly recorded in the office of the county clerk and recorder of Boulder county, Colorado; that on the 30th day of July, 1892, a judgment of the county court of Boulder county, Colorado, was duly rendered therein, sustaining said attachment, and for $712.08, and $58.95 costs; that, immediately after the rendition of said judgment, said First National Bank, for a valuable consideration, duly sold and assigned said judgment to Charles O. Floyd, one of the defendants herein; that said judgment now remains in full force and effect, and is wholly unsatisfied, except as it was satisfied by a sale of the property in controversy on the 8th day of December, 1894, under an execution duly issued thereon."

The court, after making certain findings of law, decreed that the defendants, and each of them, be forever barred from all claim to any right, title, interest, or estate in the Empress lode mining claim, and adjudged that they had no right, title, interest, or estate whatever in or to the premises, and that the title of the plaintiff was good and valid. In the findings the judgments held by Floyd, and their effect upon the plaintiff's title, were entirely ignored, possibly because the court regarded them as without significance. Why they did not receive mention, we have no means of knowing, and are unable to conjecture. There is a curious and unexplained silence in the record concerning facts, a knowledge of which is necessary to a determination of the rights to which Floyd's ownership of the judgments entitles him. The effect of the decree is to cut him off, absolutely and forever, from any claim upon the property by virtue of his judgments; but if the...