Opinion
No. 76-794
Decided December 1, 1977. Rehearing denied January 5, 1978. Certiorari denied March 6, 1978.
From summary judgment quieting title to vacant lot in plaintiff, one defendant appealed.
Affirmed
1. QUIETING TITLE — Foreclosure Sale — Certificate of Purchase Obtained — No Sheriff's Deed Obtained — Tax Lien Purchaser — Not Divested — Action — Not Collateral Attack. Although defendant's predecessor in quiet title action had received certificate of purchase to certain property at foreclosure sale, he had not timely obtained a sheriff's deed, and thus the plaintiff, claiming under quitclaim deed obtained through tax lien procedure, was not divested of his title by the foreclosure, and the quiet title action did not represent a collateral attack upon the foreclosure decree.
2. FORECLOSURE — Purchaser — Not Obtain — Sheriff's Deed — Timely Manner — No Timely Foreclosure — Certificate of Purchase Lien — No Interest Acquired — Belated Sheriff's Deed. After expiration of the time allowed for redemption, purchaser at foreclosure sale had nine months within which to obtain a sheriff's deed, and having failed timely to obtain a sheriff's deed, that purchaser then had fifteen months from the date he first became entitled to a deed to initiate an action to foreclose the lien created by his certificate of purchase; accordingly, having failed to pursue either alternative, that purchaser, and consequently his successor in title, acquired no interest in the property by virtue of sheriff's deed belatedly obtained.
Appeal from the District Court of Morgan County, Honorable Earl A. Wolvington, Judge.
Edgar H. Brandenburg, J. Scott Detamore, for plaintiff-appellee.
Kenneth D. Breneman, for defendants-appellees Marvin E. Greene, Mary Ann Greene and Harry Achziger.
Haffke Haffke, George R. Haffke, for defendant-appellant.
Defendant, Daniel Foster, appeals from a summary judgment entered by the trial court which quieted title in plaintiffs, George Emerick, to a vacant lot in Morgan County. Defendants, Marvin E. Greene, Mary Ann Greene, and Harry Achziger, also appear and challenge the summary judgment entered by the trial court. However, these defendants failed to file any notice of appeal, and thus, we consider only the contentions of Foster. C.A.R. 4(a). Finding no merit in Foster's appeal, we affirm the judgment.
The issues were submitted to the trial court for resolution based upon the following undisputed facts. Myland and Dorthy Lee Greene acquired the lot by a duly recorded warranty deed in 1967. In July of 1968, the Greenes obtained a loan and executed a deed of trust on the lot as security therefor. Beginning in December of 1968, three notices of Federal Tax Liens were filed against all property owned by the Greenes, the taxes due were not paid, and in September of 1969, the lot was sold by the Internal Revenue Service and a "Certificate of Sale of Seized Property" was issued to Emerick.
Approximately fifty days after Emerick received the certificate, an action to foreclose the deed of trust was initiated against the Greenes, and Emerick was named and served with process as one of the defendants. Prior to entry of any judgment in that action, a quitclaim deed for the lot was issued by the Internal Revenue Service to Emerick. Approximately seventeen months thereafter, a decree in foreclosure was entered for the beneficiary of the deed of trust, and sale of the lot was ordered. A certificate of purchase was issued to Marvin Greene in December of 1971, but the lot was not redeemed by any of the defendants in the foreclosure action within the time limit set by statute. By virtue of the certificate of purchase, Marvin Greene was entitled to a sheriff's deed pursuant to § 38-39-111, C.R.S. 1973. However, contrary to § 38-39-111(1), C.R.S. 1973, which requires the holder of a certificate of purchase to obtain a sheriff's deed within nine months after termination of the redemption period, Marvin Greene did not acquire that deed until May of 1973.
After Emerick initiated the present action, Foster acquired any interest that Marvin Greene had in the lot through execution upon a judgment lien against Greene.
The parties agree that, based upon the undisputed facts before the trial court, it was incumbent upon Emerick to establish a prima facie title in the lot prior to any consideration of the validity of Foster's title. See Fastenau v. Engel, 129 Colo. 440, 270 P.2d 1019 (1954). However, Foster asserts that since Emerick failed to redeem the lot pursuant to the foreclosure decree, that decree extinguished Emerick's claim to the lot, and that, therefore, Emerick failed to establish a prima facie title under the quitclaim deed from the Internal Revenue Service. In support of this contention, Foster points to the following provision of the degree:
"IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED, AND DECREED, that from and after the expiration of the period of redemption from said Sheriff's Sale as allowed by law, said Defendants and any and all persons claiming by, through or under them, shall be and they are hereby forever barred, foreclosed and procluded [sic] from having or claiming to have any right, title or interest in and to the real estate . . . ."
Similarly, Foster argues that any attempt by Emerick to assert rights based on the quitclaim deed constitutes an impermissible collateral attack upon the foreclosure decree. We find no merit in either contention.
We recognize that ordinarily when a landowner fails to redeem following a foreclosure sale, his title in the land is extinguished. See Baber v. Baber, 28 Colo. App. 530, 474 P.2d 630 (1970). However, the issue in this case is whether any rights are reinstated where, as here, the purchaser at the foreclosure sale fails to obtain a sheriff's deed in compliance with the statute. We view Green v. Hoefler, 115 Colo. 287, 173 P.2d 208 (1946) as dispositive of this issue.
In Green, the plaintiff acquired a sheriff's certificate of purchase at a foreclosure sale, the mortgagor failed to redeem, but the plaintiff failed to obtain a deed from the sheriff. Nevertheless, the plaintiff initiated a quiet title action to establish superior rights in the subject property to those of the mortgagor on the theory that the mortgagor's interest was extinguished by the foreclosure decree.
In interpreting what is now § 38-39-111, C.R.S. 1973, our Supreme Court held that issuance of the certificate of purchase was not equivalent to a conveyance of title to land, and that upon expiration of the redemption period, the certificate holder must either obtain a sheriff's deed within nine months or initiate a separate action to foreclose a lien granted by the statute within fifteen months. Otherwise, the mortgagor and those persons "entitled under him" are not divested of their title.
[1] Thus, here, Emerick having acquired the rights of Myland and Dorthy Greene by quitclaim deed through the tax lien procedure, and Marvin Greene having failed to proceed in compliance with the statute, Emerick was not divested of his title. By the same reasoning the present action is not a collateral attack upon the foreclosure decree since Emerick's claim is dependent upon the action of Marvin Greene following entry of that decree. See Bear Valley Drive-In Theater Corporation v. The Board of County Commissioners, 173 Colo. 57, 476 P.2d 48 (1970).
Foster next contends that his title is superior to that of Emerick by virtue of his acquisition of the rights of Marvin Greene. This contention also lacks merit.
[2] After expiration of the time allowed by law for redemption, Marvin Greene had nine months within which to obtain a sheriff's deed pursuant to § 38-39-111(1), C.R.S. 1973. Having failed timely to obtain a sheriff's deed, Greene then had fifteen months from the date he first became entitled to a deed to initiate an action to foreclose the lien created by his certificate of purchase pursuant to § 38-39-111(2), C.R.S. 1973. Having failed to pursue this alternative also, "it shall conclusively be presumed that such lien has been paid and discharged." Section 38-39-111(3), C.R.S. 1973. Thus, Marvin Greene, and consequently Foster, acquired no interest in the lot by virtue of the sheriff's deed.
We have considered Foster's other allegations of error and find them to be without merit.
Judgment affirmed.
JUDGE SMITH and JUDGE BERMAN concur.