Salisbury v. La Fitte

• Decision Date: 06 April 1914
• Docket Number: 7783.
• Citation: 141 P. 484,57 Colo. 358
• Parties: SALISBURY v. LA FITTE.
• Court: Colorado Supreme Court

141 P. 484

57 Colo. 358

SALISBURY v. LA FITTE.

No. 7783.

Supreme Court of Colorado

April 6, 1914

Rehearing Denied June 1, 1914.

Error to Court of Appeals.

Action by Marie La Fitte against Susan R. Salisbury. A judgment for plaintiff was affirmed by the appellate court (21 Colo.App 13, 121 P. 952), and defendant brings error. Affirmed.

George Salisbury, of Ft. Collins, for plaintiff in error.

F. B Tiffany, of Denver, for defendant in error.

MUSSER C.J.

This is a writ of error to review a judgment of the Court of Appeals affirming a judgment of the district court of Larimer county in an action for possession of real property located in that county, prosecuted by the present defendant in error against the plaintiff in error. The opinion of the Court of Appeals is reported in 21 Colo.App. 13, 121 P. 952.

On August 20, 1900, one Mrs. Taylor, who was then the actual owner of the property by deed duly recorded, executed a written contract of sale thereof to T. C. and Clara Brolliar. On July 8, 1903, the Brolliars assigned in writing their interest in this contract to the defendant in error, who went into possession of the premises. On August 27, 1903, the latter, in writing, assigned her interest in the contract to one Lindenmeier. This assignment must be regarded as a bona fide transaction, for the lower court so found upon sufficient evidence.

Neither the contract nor the assignments thereof were recorded until April 6, 1905. On June 27, 1904, Mrs. Taylor conveyed the property by deed to Lindenmeier, which deed was recorded on September 19, 1905. On February 4, 1905, Lindenmeier conveyed the property by deed to the defendant in error, which was also recorded on September 19, 1905. On August 28, 1903, an execution issued on a judgment obtained by George Salisbury against the defendant in error in the district court of Pueblo county, and on September 3, 1903, was levied on the property in Larimer county. It is to be presumed that the levy was made by filing a certificate thereof in the office of the clerk and recorder.

On the 12th day of November, 1903, the property was sold on this execution to George Salisbury, to whom the sheriff issued a certificate of sale, which was recorded on November 16, 1903. In due time a sheriff's deed was issued to the plaintiff in error, to whom the sheriff's certificate of sale had been assigned, and the sheriff's deed was recorded on August 16, 1904, and she went into possession of the property.

No claim is made that either George Salisbury or the plaintiff in error had, at the time of the levy and sale under the execution, any notice of the assignment to Lindenmeier of the contract executed by Mrs. Taylor on August 20, 1900, and it affirmatively appears from the record that they had no such notice. It thus appears that, before the levy and sale under the execution, the defendant in error had attempted to assign whatever interest she may have had to Lindenmeier, and, if that assignment was effective, she had no interest at the time of the levy and sale. Plaintiff in error says that by reason of section 694, Rev. Stat. 1908, she was a subsequent bona fide purchaser, and the assignment to Lindenmeier had no effect as to her; it not having been filed for record, and she and George Salisbury being without notice thereof. The learned Court of Appeals held that the statute mentioned was not applicable, and that the plaintiff in error took nothing by her sheriff's deed, because the defendant in error had no interest in the property at the time of the levy and sale, and also for the reason, as is said, that the statute does not apply to the assignment of such an instrument as the contract of sale. Section 694 is as follows:

'All deeds, conveyances, agreements in writing of, or affecting title to real estate or any interest therein, * * * may be recorded in the office of the recorder of the county wherein such real estate is situate, and from and after the filing thereof for record in such office and not before, such deeds, bonds and agreements in writing shall take effect as to subsequent bona fide purchasers and encumbrancers by mortgage, judgment or otherwise not having notice thereof.'

In view of the opinion of this court in McFarran v. Knox, 5 Colo. 217, the Court of Appeals erred in its holding, as will be shown by comparison of that case with the present one. It will also be shown, however, that the plaintiff in error did not acquire the fee-simple title to the property, and is not entitled to retain possession. The facts in the McFarran Case appear in the complaint, to which a demurrer had been sustained. For the purpose of comparison, we will state the facts of that case, and after the names there we will place in parentheses the names in this case so as to show the similarity of the facts. Rose (Taylor), the owner of the property, executed a written contract for the conveyance thereof to Kettlewell (Broillars). Kettlewell (Broillars) assigned this contract to McGovney (La Fitte), who went into possession. McGovney (La Fitte) assigned it to Knox (Lindenmeier). The assignment to Knox (Lindenmeier) was not recorded at the time of the levy and sale under the execution on McFarran's (Salisbury's) judgment, and McFarren (Salisbury) had no notice of it. The two cases differ in that McFarran filed an abstract of his judgment for record after McGovney had assigned to Knox, which then became a lien on the land, while it does not appear that a transcript of the judgment was filed in this case. This difference is immaterial, for the filing of the abstract only marked the inception of McFarran's lien. Here Salisbury's right had its inception at the time of the levy or sale, and when he was without notice of the assignment to Lindenmeier. McFarran also, at the time of the levy and sale, had no notice of the assignment to Knox, so that, had his rights begun with the sale, the result would have been the same. McMurtrie v. Riddell, 9 Colo. 497, 13 P. 181.

In the McFarran Case, as here, the contract of conveyance was not recorded. It was held in that case that, under section 1, Rev. St. 1868, p. 370, real estate subject to execution 'included all interest 'of the defendant or any person to his use held or claimed by virtue of any deed, bond, covenant or otherwise, for a conveyance, or as mortgagor of lands in fee, for life or for years,'' and that the interest of McGovney, held by virtue of the contract for conveyance by Rose, was subject to execution on McFarran's judgment. We have the same statutory provision now--section 3609, Rev. St. 1908. So that the interest of the defendant in error in the property in controversy was subject to execution on Salisbury's judgment. It was also held in the McFarran Case that an assignment of a contract for conveyance of real estate came clearly within the provisions of section 18, Rev. St. 1868, p. 111, which was the same as the present section 694, Rev. St. 1908, and that McGovney's assignment to Knox, being unrecorded and unknown to McFarran, did not take effect as to McFarran, though made before the inception of the latter's rights. So here the assignment of the defendant in error to Lindenmeier, being unrecorded and unknown to Salisbury, did not take effect as to the latter, though made before the inception of his rights. This case must therefore be regarded, so far as Salisbury is concerned, the same as though the defendant in error had not assigned to Lindenmeier. Unquestionably, therefore, Salisbury bought something at the sheriff's sale. What was it? Section 3648, Rev. St. 1908, provides that a sheriff's deed----

'Shall be considered as conveying to the grantee therein named all the title, estate and interest of the defendant or defendants, in the execution therein named, in and to the lands thereby conveyed, of whatsoever nature the same may be.'

The deed takes effect by relation as of the day of the sale or the day on which the certificate of levy is filed. McMurtrie v. Riddell, supra.

If a certificate of levy, under an execution from one county on land in another, is filed in the recorder's office of the county wherein the land is situate, as must be presumed was the case here, the deed relates back to the date the certificate is filed. Section 3637, Rev. St. 1908. Salisbury, therefore, bought, at the sheriff's sale, and had conveyed to him by the sheriff's deed, all the title, estate, and interest of the defendant in error in the land sold at the time of the filing of the certificate of levy, or for the purposes of this case, if desired, at the time of the sheriff's sale. What was that interest?

The contract of conveyance from Taylor provided that, if the contractees therein should first make the payments and perform the covenants mentioned, Mrs. Taylor agreed to sell and convey to the contractees in fee simple, by good and sufficient deed of conveyance, all the land described in the contract, which is the land in controversy. The purchase price was to be paid in small monthly installments, which would run through a number of years. These installments were evidenced by promissory notes payable, respectively, on the 20th of each month thereafter, and the last one was payable on November 20, 1904. Among other things, it was provided in the contract that time was the essence thereof, and, in the event of the nonpayment of said installments, or any part thereof, promptly at the time limited, then Mrs. Taylor was absolutely discharged at law and equity from any and all liability to make and execute a deed, and she might treat the contractees as tenants holding over after the termination or contrary to the terms of their lease. It was further stated that, in the event of the nonpayment of the purchase money as provided, all payments...