Kreps v. Webster

• Decision Date: 06 May 1929
• Docket Number: 12181.
• Citation: 277 P. 471,85 Colo. 572
• Parties: KREPS v. WEBSTER, Sheriff.
• Court: Colorado Supreme Court

277 P. 471

85 Colo. 572

KREPS v. WEBSTER, Sheriff.

No. 12181.

Supreme Court of Colorado

May 6, 1929

Department 2.

Error to District Court, Rio Grande County; J. C. Wiley, Judge.

Action by Arthur H. Webster, as Sheriff of Rio Grande County against Oscar Kreps. From a judgment for plaintiff, defendant brings error.

Affirmed.

George M. Corlett, of Monte Vista, for plaintiff in error.

Herbert W. Martin, of Monte Vista, for defendant in error.

MOORE J.

Judgment was rendered against plaintiff in error, a defaulting bidder at a sheriff's sale on execution, for $900, being the difference between his bid and the amount realized at a subsequent sale. Defendant sought to avoid liability claiming that the sale was void because the execution debtor had no title to the property and he had been mistaken concerning the character of the sale. Plaintiff contends that caveat emptor applied and liability ensued. On the issue of mistake the testimony was conflicting and the court found thereon for the plaintiff. Such a finding cannot be reviewed even assuming that it is here properly presented. Therefore the sole question presented for our determination is: Does the doctrine of caveat emptor apply to a purchaser at an execution sale when the debtor has no title to the property sold? We answer in the affirmative.

Copeland v. Bank, 13 Colo.App. 489, 491, 59 P. 70, 71:

'At an execution sale, the proceedings in connection with which have been regular and valid, the purchaser takes whatever title or interest the execution defendant may have; and it is of the defects in that title that he assumes the risk. If the defendant has good title, the purchaser gets it; if a partial title, he gets that; or, if no title, he gets nothing: but he takes his chances on the title the defendant has, and if that proves worthless, he is without remedy. It behooves him to acquaint himself with the title before purchasing; and his complaint afterwards that it was unsatisfactory, will not be heeded. The foregoing is as full a statement of the doctrine of caveat emptor as the case before us renders necessary. Rodgers v. Smith, 2 Ind. 526; Holtzinger v. Edwards, [51] 5 Iowa 383 ; Bassett v. Lockard, 60 Ill. 164; Boggs v. [Fowler] Hargrave, 16 Cal. 560 .'

The doctrine therein laid down was approved in Ohio & Colorado Co. v. Barr, 58 Colo. 116, 131, 133, 134, 144 P. 552, 557, 558. After reciting the foregoing, the opinion continues:

'Since, with us, any interest in real property, no matter what, is subject to execution, there is no rule of law or morals which prevents an execution creditor from levying upon and selling any property or interest therein which he even suspects an execution debtor may have. It is a well settled rule that to such sales the rule caveat emptor applies. 24 Cyc. 57. * * *

'As already indicated, an execution creditor is entitled to sell any pretended right or interest of a judgment debtor in any property. If it turns out that he had no right or interest, nothing passes. * * *

'The duty is upon the purchaser to be diligent in inquiry and ascertain what the facts are respecting such interest or title. There is not the slightest showing in this case that appellant made any inquiry whatever, or exercised the slightest diligence, to learn the facts.'

It is true that in each of the foregoing cases the execution debtor had some title and the recitations therein contained applying to cases where no title is shown are obiter dicta.

However, the general rule is that, in the absence of mistake or fraud, caveat emptor applies also to cases where the debtor has no title. 26 C.J. § 623, p. 654:

'* * * The rule of caveat emptor applies to purchasers at execution sales. The purchaser cannot set up as a defense defects in the debtor's title, or the absence of any title in the debtor, or the existence of encumbrances, or a deficiency in quantity of the land, or, in the absence of

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