Finch v. Turner

Mr. Justice Campbell delivered the opinion of the-court. It will be conceded, of course, that although the certificate of sale and the sheriff’s deed included all of the Wallace-lode, the grantee of the deed acquired only such interest as- Sanderson owned therein. But whatever irregularity there-may-have been in including in the execution and in- the certificate of sale and the sheriff’s deed the entire- lode*, this will, not -invalidate the deed, or the grantee’s title- thereunder, as to the interest which the judgment debtor actually owned. As we have seen, the decree in the Teal- case- established a lien upon the property, and awarded a venditioni exponas, under which the property was to be sold to satisfy the personal judgment embodied in the decree as. a, part thereof. First: It is contended that the abandonment by the judgment creditor of his rights to enforce th.e- lien was equiva [290] lent to a surrender of all his right to enforce any part of the decree, and that the issuing of an ordinary execution upon such personal judgment and the sale thereunder and the sheriff’s deed in pursuance thereof are void. In passing we may observe that we fail to see the appropriateness of the particular writ awarded, and it may be that the judgment creditor was likewise sensible of the inadequacy of the writ to enforce the lien, and such may have been an additional ground for waiving the lien, even if valid. In Cannon et al. v. Williams, 14 Colo. 21, the court held that the lien as established by the trial court could not be sustained because the claimant failed to observe the substantial requirement of the statute prescribing what should be included in the recorded notice of the lien. But the court held that a personal judgment might be rendered upon which execution might issue, and dismissed the proceedings as far as the lien was concerned, but ordered execution to be issued for the collection of the debt as in case of money judgments recovered through ordinary actions at law. See, also, St. Kevin Mining Co. v. Isaacs, 18 Colo. 400. The only material difference in the facts between that case and this is that in the former the superior advantages of the lien were lost by a ruling of the court, while in this case the lien claimant voluntarily relinquished his right to enforce the lien which, if valid, would have given him greater rights than would an execution on an ordinary money judgment. The appellant strenuously insists that the lien is invalid, and yet objects to the act of the claimant waiving the same. We agree with appellant that the decree, in so far as it established a lien, cannot be sustained, and an attempted enforcement thereof would have been useless. But as in the former case the personal judgment and its enforcement by an ordinary execution were saved to the judgment creditor notwithstanding the lien fell by the judgment of the appellate court, so in this case the right remains to the lien claimant who established his claim to enforce the personal judgment, although he voluntarily relinquished what the trial court de [291] dared a lien, but which cannot be upheld by this court as valid. Second: The appellant insists, however, assuming the validity of the Teal judgment, that the execution of the sheriff’s deed on March 3, 1885, was premature and void, because it issued before the expiration of nine months from the date of the sale. To this there are two answers: (1) The sale was had on the 2d of June, 1884. The sheriff’s deed was issued March 3, 1885. Between the date of the sale and the date of the sheriff’s deed nine calendar months intervened. But (2) if this were not true, the appellant, being a grantee of Sanderson, the judgment debtor, cannot be heard to complain. He is subrogated to the rights of his grantor, and has such rights as his grantor would have, and none other. As to the judgment debtor and his grantee, the deed may issue at any time after the expiration of six months. Gen. Stats. (1883), sec. 1851. Third: It is said that Turner was the owner by assignment of three other judgments against Sanderson, and while we do not consider it necessary to determine whether or not there is proper evidence in the record to support this assertion, yet, assuming it to be true, it is urged that before the sheriff’s deed under the Teal judgment was issued to Turner executions were issued and sales made under these three judgments, and Turner became the purchaser thereat, so that he thereby redeemed from the sale under the Teal judgment, and consequently the sheriff’s deed of March 3d is void. We do not consider the claim tenable. There was no intention on the part of Turner to redeem. None of the statutory provisions for redemption were complied with in any respect. Besides, one who has several judgments against a debtor may, if he sees fit, enforce all of them ; but if any particular property of a judgment debtor is legally sold under a valid execution, the entire interest of the judgment debtor therein is divested, and a subsequent sale of the same property under other executions conveys nothing. As we have already determined, the Teal judgment was [292] valid, the sale under the execution regular, and the sheriff’s deed was executed as the law provides. By such proceedings all the interest that Sanderson owned in this property was divested, and became vested in Turner, whose deed therefore was placed upon record long before the appellant obtained his deed from Sanderson. The appellant challenges the constitutionality of the mechanic’s lien act on the ground that the legislature did not follow the provisions of the constitution in passing the same, but as the rights of the defendants do not in any sense rest upon that act, the point need not be determined. Besides, the record fails to show that any evidence of such noncompliance was brought to the attention of the trial court in such a way as to call for its ruling thereon, or to permit of a review of the same in this court. It follows that the judgment of the district court should be affirmed. Affirmed.