Salisbury v. La Fitte

• Decision Date: 08 January 1912
• Citation: 121 P. 952,21 Colo.App. 13
• Parties: SALISBURY v. LA FITTE.
• Court: Colorado Court of Appeals

121 P. 952

21 Colo.App. 13

SALISBURY v. LA FITTE.

Court of Appeals of Colorado

January 8, 1912

Rehearing Denied March 11, 1912

Appeal from District Court, Larimer County; Christian A. Bennett Judge.

Action by Marie La Fitte against Susan Salisbury. From a judgment for plaintiff, defendant appeals. Affirmed.

George Salisbury, for appellant.

Charles M. Bice and H.I. Garbutt, for appellee.

HURLBUT J.

On September 25, 1905, plaintiff (appellee) filed her complaint in the district court of Larimer county therein alleging herself to be the owner in fee of certain lots in Ft. Collins, Colo.; that on or about June 1, 1905 defendant wrongfully took possession thereof, and until the time of bringing the action wrongfully withheld possession of the same from plaintiff, to her damage, closing with a prayer for judgment for possession of the lots, as well as for damages for their wrongful detention. Defendant filed her answer and cross-complaint, therein denying all the allegations of the complaint, and alleging fee-simple title to the premises in herself, which title she claims to have acquired by and through a sheriff's sale of the lots under an execution issued August 28, 1903, out of the district court of Pueblo county, upon a judgment rendered in said court on January 8, 1894, in favor of George Salisbury and against plaintiff, for $3,130. The answer and cross-complaint plead a number of other defenses, such as estoppel, res judicata, and fraud closing with a prayer for legal and equitable relief. The case was tried to the court; a jury being waived. The court found all the issues in favor of plaintiff and gave judgment accordingly. In the complaint originally filed John Brown was impleaded with Susan Salisbury as defendant; but, after hearing the evidence, the court, on motion, dismissed the action as to him.

A more ready understanding of the case may be obtained by stating a few important facts bearing on the issues, which the record shows to be undisputed, viz.: (a) The judgment of the district court of Pueblo county against plaintiff, La Fitte, was rendered January 8, 1894, and no transcript thereof was ever filed in the office of the clerk and recorder of Larimer county. Upon this judgment execution was issued on August 28, 1903, directed to the sheriff of Larimer county, who, on September 3, 1903, levied the same upon all the interest of plaintiff in and to the lots in issue. The lots were sold at public auction by the sheriff on November 12, 1903. Certificate of sale was duly issued and recorded by the sheriff, and sheriff's deed, on August 15, 1904, was duly delivered to defendant, Susan Salisbury, who had previously bought the sheriff's certificate of purchase. The sheriff's deed was duly recorded on August 16, 1904, in the records of Larimer county. (b) Plaintiff first acquired the legal title to the lots on February 4, 1905, by deed from John G. Lindenmeier. The deed was acknowledged on that date, and recorded in the office of the clerk and recorder of Larimer county on September 19, 1905. (c) On August 20, 1900, Julia S. Taylor was the legal owner of record of the lots, and on that date she executed and delivered to T.C. Brolliar and Clara Brolliar a written contract in the nature of an option to purchase said lots. On July 8, 1903, the Brolliars assigned in writing all their interest in said contract to plaintiff. (d) On August 27, 1903, plaintiff assigned in writing all her interest in the contract of August 20, 1900, previously transferred to her by the Brolliars, to John G. Lindenmeier. Neither the contract of August 20, 1900, nor assignment thereof to plaintiff, nor the transfer by plaintiff of her interest therein to Lindenmeier, were placed on record until April 6, 1906.

It will be seen from the above statement that the only title plaintiff, La Fitte, had in the lots prior to August 27, 1903, was a mere equitable right, under the assignment to her of the contract of August 20, 1900, to make certain payments and do certain things required, which would entitle her to demand a deed to the lots from Julia Taylor, the record owner.

The written evidence of this equitable interest of plaintiff acquired by assignment to her of the contract of August 20, 1900, was never recorded, as above shown, until long after the issue of said execution and sale thereunder, and not until long after the sheriff's deed had been executed, delivered, and recorded. It will be further noticed that on August 27, 1903, one day before the execution was issued, on the Pueblo county judgment, plaintiff, La Fitte, transferred and assigned in writing all her right, title, and interest in and to this contract of August 20, 1900, to Lindenmeier, who afterwards, on June 27, 1904, acquired the full legal title to the lots by deed of that date from Julia Taylor, the legal owner thereof. Therefore it follows that during all the time, from the day the execution was issued to the day the sheriff's deed was recorded, plaintiff had no title whatever, either legal or equitable, in and to the lots sold; hence the entire proceedings under said execution were fruitless and in no way conveyed or transferred to defendant Susan Salisbury any title in or to the lots in question.

Appellant's counsel, in his brief, calls our attention to section 446, Mills' Annotated Statutes, and insists that by virtue thereof no interest in the contract of August 20, 1900, passed to Lindenmeier under the assignment made to him by plaintiff on August 27, 1903. This section appears in the Revised Statutes of 1868, and from that time to the present has been retained as a well-known part of our recording statute, and we find that its provisions relating to form, force, and effect, of instruments for the conveyance of real estate, were largely transcribed and adopted from the statutes of Illinois. One of the objects of this statute seems to have been to protect subsequent bona fide purchasers and incumbrancers without notice, from outstanding unrecorded deeds, given by failing record owners of real estate to third persons, under secret agreements that such deeds should not be recorded, and that title should be held in trust by such third persons for the use and benefit of the grantor; thus placing such bona fide subsequent purchasers and incumbrancers in the position of being confronted with one of these unrecorded instruments after a long and expensive proceeding by them against their debtor, upon faith of the record showing, only to find their efforts unavailing, as against such unrecorded instrument. Therefore, in order to carry out such purpose, the statute was so framed as to lodge in such subsequent incumbrancers and purchasers the unquestionable right to rely with absolute security upon what the record shows concerning title to the debtor's real estate.

We do not think the statute applies to a case of this kind. To hold that a person, having a mere unrecorded option from the record owner to purchase real estate, under which it is doubtful if any title will ever pass to such person, as coming within the provisions of this section would, we think, be against the letter and spirit of the statute. the case of McMurtrie v. Riddell, 9 Colo. 501, 13 P. 181, cited by appellant's counsel, does not, in our judgment, support his contention that the...