Leach v. Torbert
| Decision Date | 06 February 1922 |
| Docket Number | 9966. |
| Citation | 204 P. 334,71 Colo. 85 |
| Parties | LEACH v. TORBERT et al. |
| Court | Colorado Supreme Court |
Department 1.
Error to District Court, Weld County; George H. Bradfield, Judge.
Suit by Richard E. Leach against W. R. Torbert and others. Judgment for defendants on demurrer, and plaintiff bgrings error.
Reversed and remanded, with directions.
John R. Smith and Richard E. Leach, both of Denver for plaintiff in error.
Henry Howard, Jr., of Denver, and Walter E. Bliss, of Greeley, for defendants in error.
This is a suit in which a judgment creditor seeks to redeem land of the debtor which had been sold under a decree foreclosing a deed of trust, to compel the sheriff to accept the proper amount of redemption money, and to cancel certain instruments involving, and resulting from, a redemption or attempted redemption by another judgment creditor. A demurrer to the complaint was sustained, and the cause was dismissed. The plaintiff brings the cause here for review.
The facts shown in the complaint, and which are admitted by the demurrer, are as hereinafter stated.
On May 31, 1918, and at all such times thereafter as are mentioned in the complaint, the land involved in this suit, consisting of a quarter-section in Weld county, was owned by one Edward L. Heald and one C. B. Bingaman, each of whom held in fee an undivided one-half interest. The land was subject to certain reservations of the Union Pacific Railway Company, and also to a certain deed of trust to secure the payment of certain promissory notes. On the date above mentioned one E. Clifford Heald, who was then the owner and holder of the notes, and the beneficiary of the deed of trust, commenced an action in the district court of the city and county of Denver, seeking a judgment on the indebtedness and other relief, including a decree of foreclosure of the deed of trust.
On September 4, 1918, E. Clifford Heald obtained the decree of foreclosure as sought by him. On October 14, 1918, the sheriff of Weld county, which is the county wherein the land is situated, sold the premises in accordance with the decree and upon the sale the land was struck off and sold to the above named E. Clifford Heald for the sum of $2,018.76, and a certificate of purchase was issued to him.
On the date above mentioned, and at all times since, the plaintiff in the instant case, Richard E. Leach, was a judgment creditor of Edward L. Heald, and, as such judgment creditor Leach sought to redeem the property on July 12, 1919, which was after the expiration of six months and before the expiration of nine months from the date of the sheriff's sale above mentioned. The complaint alleges the proper tender to the sheriff. No other judgment creditor of Edward L. Heald has redeemed the land from the sheriff's sale of October 14, 1918. Neither has the land been redeemed by a judgment creditor of any defendant in the foreclosure suit having any interest in the land. The sheriff of Weld county refuses to allow the plaintiff to redeem.
Prior to plaintiff's attempt and offer to redeem, namely, on May 10, 1919, there was a redemption made, or attempted to be made, by one W. R. Torbert. At that time, and ever since July 10, 1918, there was on file in the office of the clerk and recorder of Weld county a transcript of a judgment docket, reading as follows:
At the time the transcript was filed the judgment described therein had been fully paid and satisfied as to Edward L. Heald.
It appears from the complaint that when Torbert attempted to redeem the land he did so as a judgment creditor, not of Edward L. Heald, but of Wilfred J. Heald and at all the times herein mentioned Wilfred J. Heald had no estate, right, title, or interest whatever in the land, or any part thereof. Torbert levied execution...
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Sant v. Stephens
...property was entitled to redeem the entire property from a sale in foreclosure of a prior lien on the whole. See also Leach v. Torbert, 71 Colo. 85, 204 P. 334 (1922). In fact, a holder of a lien on an undivided interest who wished to redeem was obligated to redeem the entire property. Walk......
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Sant v. Stephens
...property was entitled to redeem the entire property from a sale in foreclosure of a prior lien on the whole. See also Leach v. Torbert, 71 Colo. 85, 204 P. 334 (1922). In fact, a holder of a lien on an undivided interest who wished to redeem was obligated to redeem the entire property. Walk......
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First Nat. Bank of Southglenn v. Energy Fuels Corp., 79SC139
...been the only lienor seeking to redeem or the only person with the right to redeem, it could redeem the whole property. Leach v. Torbert, 71 Colo. 85, 204 P. 334 (1922); Walker v. Wallace, 79 Colo. 380, 246 P. 553 (1926); Section 38-39-103(1), C.R.S. 1973. In this case, however, another lie......
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Walker v. Wallace
...execution, the judgment of the district court is manifestly wrong. That he did have such right is beyond question. Leach v. Torbert et al., 71 Colo. 85, 204 P. 334, is conclusive upon that question. The suit there was reverse of the present one. The Leach action was one by a judgment credit......