Moore v. Jacobucci

• Decision Date: 02 May 1921
• Docket Number: 9810.
• Citation: 197 P. 1015,70 Colo. 171
• Parties: MOORE v. JACOBUCCI.
• Court: Colorado Supreme Court

197 P. 1015

70 Colo. 171

MOORE v. JACOBUCCI.

No. 9810.

Supreme Court of Colorado

May 2, 1921

Department 1.

Error to District Court, Adams County; Samuel W. Johnson, Judge.

Action by A. M. Moore against one Trostel; and on levy being made on funds in the hands of the Great Western Sugar Company garnishee, John Jacobucci intervened, setting up a claim thereto. There was a judgment for intervener, and plaintiff brings error.

Reversed and remanded with directions.

Harry S. Class, of Denver, for plaintiff in error.

TELLER J.

Plaintiff in error brought an action against one Trostel, in Adams county, upon certain promissory notes, and had judgment. An execution duly issued, and under it a levy was made in the sum of $400, then in the hands of the Great Western Sugar Company, garnishee, in said Adams county.

Thereafter the defendant in error intervened, setting up that the money in question was the proceeds of certain beets upon which he had a chattel mortgage, which was recorded in Weld county. From the agreed statement of facts, it further appears that Trostel, the judgment debtor, with the knowledge and consent of the said mortgagee, delivered said beets to the sugar company in the county of Adams. Further, that there was no agreement that the said garnishee was to act as trustee or agent for any of the parties.

On the trial of the issues thus raised, the court found for the intervener, and entered judgment accordingly. The cause is before us on error.

The facts being as thus stated, it must be held that the court erred in finding for the intervener and entering judgment in his behalf.

It is a settled rule of law that consent by the mortgagee to the sale of the mortgaged property is a waiver of the lien of the mortgage. Wilson v. Voight, 9 Colo. 614, 13 P. 726; Ziegler v. Ilfeld, 52 Colo. 275, 122 P. 56, Ann.Cas. 1913D, 583.

It is also the rule that upon a sale of the mortgaged property, with the mortgagee's consent, the mortgage lien does not attach to the proceeds. Maier v. Freeman, 112 Cal. 8, 44 P. 357, 53 Am.St.Rep. 151.

Where such sale has been made, the mortgagee is left with no security except the personal promise of the mortgagor to pay the proceeds to him. White Mountain Bank v. West, 46 Me. 15.

It does not appear in this case what, if any, agreement there was as to the proceeds of the sale. In any event, they were subject to garnishment in the hands of the purchaser,...