Union Trading Co. v. Drach
| Decision Date | 01 February 1915 |
| Docket Number | 8157. |
| Court | Colorado Supreme Court |
| Parties | UNION TRADING CO. et al. v. DRACH et al. |
Error to District Court, Garfield County; John T. Shumate, Judge.
Action by E. E. Drach and another against the Union Trading Company and another. Judgment for plaintiffs, and defendants bring error. Reversed.
Burgess & Kinard and Straud M. Logan, all of Grand Junction, for plaintiffs in error.
James C. Gentry, of Meeker, and J. W. Dollison, of Glenwood Springs, for defendants in error.
This is an action in replevin. The property involved is described as follows:
'One warehouse 40X100 feet in size, two stories in height and basement, said warehouse being of the value of twenty-five hundred dollars, and one motor and grain separator, the same being in said warehouse, and of the value of three hundred fifty dollars; one grain elevator, the same being in said warehouse, and of the value of ninety dollars; one pair of wagon scales of the value of seventy-five dollars one pair of platform scales of the value of twenty-five dollars; three two-wheeled trucks of the value of fifteen dollars; one pair of four wheeled trucks of the value of fifteen dollars; two sack holders of the value of two dollars, and two patent crowbars of the value of three dollars, all of the aggregate value of thirty-one hundred and fifty ($3,150.00) dollars, and that said personal property was and is on the following described land, in Garfield county, Colorado, to wit: Commencing at a point 64 feet at right angles northerly from the center line of the main track of the Denver & Rio Grande Railroad Company, at Rifle Station, and opposite a point on the said center line of 300 feet westerly along said track from the westerly end-line of the depot building, at said station thence westerly parallel with and 8 feet northerly from the center line of said railroad company's house track 200 feet, thence at right angles northerly 100 feet, thence at right angles easterly 200 feet, thence at right angles southerly 100 feet, to the place of beginning.'
The trial court rendered judgment in favor of plaintiffs below, defendants in error here.
Prior to the 12th day of December, 1911, the Union Trading Company, defendant below, was the exclusive owner and in possession of this, among other property. The said corporation was then engaged in the general merchandise business, among other enterprises, at several points within the state, including the town of Rifle, where the property in dispute was situated. On the latter date, the corporation was declared a bankrupt, and one W. C. Weaver was appointed receiver, and later during said month of December, 1911, was appointed trustee in bankruptcy.
On the 27th day of January, 1912, S.D. Trimble, referee in bankruptcy, ordered a public sale of certain of the property of the trading company, by the trustee, and which sale was held on the 17th day of February, 1912, at the federal court building in Pueblo. The defendants in error purchased certain of the property of the trading company, located at the town of Rifle, and at other points, and claim title to the property in controversy, as being included within such sale. The property of the trading company was advertised and sold at such sale, as consisting of 14 different lots. The claim of Drach & Co., plaintiff below, to title, is based on the sale of lot No. 1, described as follows:
Heat & Power Co., par
value $25.00.
" G. 60 shares Rifle Creek Te.
Co., par value, $60.00.
" H. 1,000 shares Rifle Creek
Mercantile Co., par
value, $1,000.00.
" K. All cash and cash items
to date of sale.
This property, so described as lot No. 1, was purchased by Drach & Co. at the sale and in the lump for $12,000. Under the order of sale, the trustee in bankruptcy was authorized:
'To advertise and offer for sale, and to sell, subject to confirmation by order of this court, certain of the property of said bankrupt corporation hereinafter described, at public sale, at auction, to the highest and best bidder for cash, and that he keep an accurate account of the amount offered for each lot or parcel offered, and the price offered for each parcel and for each lot, and by whom offered; and that, after offering each parcel separately, he shall offer all of the parcels comprising one lot, together, and so continue offering each parcel of each lot and each lot separately until he has received bids upon and for all of the personal property of the company pertaining to each store, or place of business, and shall report to this court the bids received by him and ask confirmation by order of this court of the sales; that for the purpose of such sales the property of the said bankrupt corporation shall be divided into lots and parcels as follows.'
The order then specifically described the 14 lots, including lot No. 1, sold to Drach & Co., and exactly as above set forth.
The advertisement of sale recites that the trustee will 'offer and expose for sale to the highest and best bidder for cash the following described of the appraised property of the Union Trading Company as follows, to wit.' Then follows the description of the property to be sold, as in the order of sale. The order of confirmation recites that the trustee did offer and expose for sale at public vendue:
In the order of sale, it is recited that the stockholders in the petition for an order of sale had requested that the real estate of the company and certain bills receivable be not sold for the present, and that such request had been acquiesced in by the creditors, and was granted.
The defendant below offered to show that the trading company had carried the warehouse on its books as real estate, which offer was denied by the court. If this property was so carried on the books of the company, it is a circumstance to show what was in the minds of the stockholders when they asked the court not to include the real estate in the order of sale.
There does not appear to be any fact in the record tending to show that the property involved, or any part thereof, was intended by the petitioners, or the court, to be included in the sale. Clearly, no part thereof was mentioned, nor included in the specific lists of property, either in the order, or in the published advertisement of sale. The trial court found as a fact that:
'The warehouse and other property mentioned above was not particularly mentioned either by name or by amount of appraisement in said order of sale, unless such amount was embraced in parcel 'A' of lot '1."
That the warehouse was not included under the head of merchandise when the fixtures and equipment of the store were appraised and described separately from the merchandise...
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Albertson Ranches, Inc. v. Cuddy
...and that the property be sold. This was done and plaintiff acquired its title from the sale by the receiver. In Union Trading Co. v. Drach, 58 Colo. 550, 146 P. 767, the court defined judicial sale as "A judicial sale is one made under the process of a court having competent authority to or......
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