Wixon v. Wixon
| Decision Date | 05 January 1925 |
| Docket Number | 10929. |
| Citation | 76 Colo. 392,232 P. 665 |
| Parties | WIXON v. WIXON et al. |
| Court | Colorado Supreme Court |
Department 2.
Error to District Court, Logan County; L. C. Stephenson, Judge.
Action by S.D. Wixon against A. J. Wixon and others. Judgment for defendants, and plaintiff brings error.
Affirmed.
T. E Munson, of Sterling, for plaintiff in error.
Bartels & Blood, of Denver, for defendants in error.
ALLEN J. (sitting for TELLER, C.J.).
On February 21, 1921, S.D. Wixon was the owner in fee of the northwest quarter of section 4, township 11 range 52, in Logan county. On that date he sold the land to A. J. Wixon, taking back a purchase-money mortgage in the sum of $4,000. The mortgage instrument by mistake described the land as being in section 7, instead of section 4. With such incorrect description, it was recorded on March 19, 1921.
In January, 1922, the Divide Lumber & Coal Company obtained a judgment against the grantee of the deed, A. J. Wixon, and filed a transcript of the judgment with the county clerk and recorder. Thereafter S.D. Wixon brought this action to reform the mortgage so as to have it describe the land intended to be mortgaged, and also to foreclose the mortgage as reformed. The Lumber & Coal Company sought in this action to have its judgment lien made superior to the lien of the plaintiff's mortgage, and was successful in the court below. The mortgagee, S.D. Wixon, brings the cause here for review. The question to be determined is which one of the two liens above mentioned has a priority over the other.
The plaintiff in error relies upon Emery v. Ward, 68 Colo. 373 191 P. 99, in which it was held that a purchase-money mortgage is superior to all other liens or claims against the mortgagor. If the mortgage had property described the property, the case above cited would be controlling here. But the situation is otherwise. So far as section 4 is concerned, the mortgage had the effect only of an unrecorded mortgage, because it did not describe or mention any land as being in section 4.
The mortgage was good as between the mortgagor and the mortgagee and could be reformed as to them, but not as to the holder of a judgment lien accruing against the mortgagor after the transfer of the real estate in question. The circumstances of this case are analogous to the facts appearing in Davis v Lutkiewiez, 72 Iowa 254, 33 N.W. 670, where it was held that a purchase-money mortgage which, like the mortgage involved in the instant case, failed to describe the tract of land intended to be mortgaged, was subordinate to the lien of a subsequent mortgage. Following the reasoning of that case, it is to be observed that in the instant case the judgment of the Divide Lumber & Coal Company became a...
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Smith v. Pattishall
...will not affect the lien of a judgment rendered between the date of the execution and the reformation of the mortgage. In Wixon v. Wixon, 76 Colo. 392, 232 P. 665, it was that, while a mortgage defectively describing the land may be reformed as to the mortgager, such reformation of the mort......
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Jaramillo v. McLoy
...or merely a creditor. Indeed, even under the prior, more narrowly worded, Colorado statute,7 judgment creditors, Wixon v. Wixon, 76 Colo. 392, 232 P. 665 (1925), execution creditors, Hallett v. Alexander, supra, and attaching creditors, Jerome v. Carbondale National Bank, supra, have been h......
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Rivera v. Rivera (In re Rivera)
...historically have served as the primary means of identifying real property in instruments affecting title. See, e.g., Wixon v. Wixon, 76 Colo. 392, 232 P. 665 (Colo. 1925); Wedman v. Carpenter, 65 Colo. 63, 173 P. 57 (Colo. 1918); Derham v. Hill, 57 Colo. 345, 142 P. 181 (1914); see also Ch......
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Lowery v. Wilson
...Creditors and purchasers for a valuable consideration can rely on the record of the instrument as written and recorded. In Wixon v. Wixon, 76 Colo. 392, 232 P. 665, it held: A recorded mortgage on real estate which contains an erroneous description of the land conveyed, has the effect only ......