Sellers v. Floyd

• Citation: 52 P. 674,24 Colo. 484
• Parties: SELLERS v. FLOYD et al.
• Decision Date: 21 February 1898
• Court: Supreme Court of Colorado

52 P. 674

24 Colo. 484

SELLERS v. FLOYD et al.

Supreme Court of Colorado

February 21, 1898

Error to court of appeals.

Action by John A. Sellers against Charles O. Floyd and others. From a judgment in favor of plaintiff, defendants appealed to the court of appeals, where the judgment was reversed (44 P 373), and plaintiff brings error. Affirmed.

George S. Adams and Carpenter & McBird, for plaintiff in error.

J. R Zuver and H. C. Henderson, for defendants in error.

GODDARD J.

This is an action to quiet title, and was originally brought in the district court of Boulder county, by the plaintiff in error against the defendants in error, and resulted in a judgment in his favor. Upon appeal to the court of appeals this judgment was reversed. To this judgment of the court of appeals Sellers prosecutes this writ of error.

The case was tried upon an agreed statement of facts, from which it appears that the Empress lode mining claim originally belonged to one Samuel H. Cochran, and was, on February 2 1891, conveyed by him to the Boston & Colorado Gold & Silver Mining Company, together with other property. On February 6, 1893, John A. Sellers recovered a judgment against Cochran and the Boston & Colorado Gold & Silver Mining Company, and filed a transcript of said judgment in the office of the clerk and recorder of Boulder county on October 19, 1893. A writ of attachment was issued in the action, and levied on the Empress lode on August 19, 1892. On April 29, 1893, Elson H. Bishop recovered a judgment against Cochran and the company, and filed a transcript of said judgment in the office of the clerk and recorder of Boulder county on May 1, 1893. On January 27, 1894, upon an execution is sued upon the Sellers judgment, the Empress lode, together with other property, was sold by the sheriff, and bid in by Sllers for the amount of his judgment, and a certificate of purchase issued to him. On July 28, 1894, Bishop caused an execution to be issued upon his judgment, and effected a redemption of the property from the sale to Sellers; and on August 22, 1894, on this execution, the property was sold to Bishop for the amount of the redemption money he had paid. Thereafter Bishop assigned the certificate of purchase to Sellers, and thereupon the sheriff executed and delivered to him a deed of the property. On April 20, 1892, one Margaret Sargent commenced an action against Cochran and the company and caused an attachment to be levied upon the interest of Cochran and the company in the Empress lode, and thereafter assigned her claim to Floyd, who was substituted as plaintiff. On October 8, 1892, Floyd recovered a personal judgment against the company, and a judgment against Cochran's interest in the attached property. On April 22, 1893, upon an execution issued upon this judgment, the property was sold to Floyd, and a certificate of purchase issued to him therefor. On October 21, 1893, Cochran paid to the sheriff the money necessary to redeem the property from this sale, and received a certificate of redemption in due form. On January 23, 1894, the sheriff executed a deed for the property to Floyd, pursuant to the sale to him and his certificate of purchase. On July 6, 1892, Whitney & Metcalf commenced an action against Cochran and the company, and caused an attachment to be levied upon the property; and on October 8, 1892, they recovered a judgment sustaining the attachment, and for $193.25 and costs. On November 20, 1894, for a valuable consideration, they sold and assigned this judgment to Floyd. On August 26, 1892, Floyd recovered a judgment against the company for $682 and costs. On August 29, 1892, he filed a transcript of said judgment in the office of the clerk and recorder of Boulder county. On October 10, 1892, Floyd recovered a judgment against the company for $281.50 and costs; and on October 12, 1892, he filed a transcript of said judgment in the office of the clerk and recorder of Boulder county. On March 18, 1892, the First National Bank of Boulder commenced an action against the company and Cochran, and had a writ of attachment issued therein, and levied upon the property in controversy. On July 30, 1892, a judgment was rendered therein, sustaining said attachment, and for $712.08 and costs. Immediately after the rendition of said judgment, the First National Bank, for a valuable consideration, sold and assigned said judgment to Floyd. Floyd had executions issued upon the four judgments last named, and placed them in the hands of the...