Opinion
Rehearing Denied April 13, 1971.
Page 521
Sandhouse & Sandhouse, Sterling, for plaintiff in error.
Benedetti & Fennie, Wray, for defendants in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This case involves the validity of a judicially ordered sale. Plaintiff in error, Charles H. Sandhouse (Sandhouse) was plaintiff in the trial court and seeks reversal of a summary judgment entered by the trial court in favor of defendants in error, Irvine, Althoff and Bianco, defendants below.
The action below was based on the following circumstances: On June 14, 1963, E. D. Dressel, d/b/a E. D. Dressel Feed and Seed Co. executed a note and chattel mortgage to Farmers Elevator Company of Sterling. The chattel mortgage covered a 1959 Mooney Mark 20-A aircraft. Upon defendant's alleged default, the aircraft was repossessed by Farmers Elevator Company on September 6, 1967. Thereafter, on September 13, 1967, Sandhouse, who represented Dressel, wrote a letter to the attorneys representing Farmers Elevator Company, protesting the repossession.
On January 9, 1968, the trial court issued an order denying a petition by Farmers Elevator Company to have the aircraft sold. In its order, the trial court stated that justice would best be served if the aircraft were not sold until the issues presented in the pending trial on the note and chattel mortgage were determined. Trial was begun on March 19, 1968. On March 21, 1968, Pendente lite, Dressel executed a bill of sale to his attorney, Sandhouse, purporting to transfer the aircraft. The bill of sale specifically acknowledged the chattel mortgage in favor of Farmers Elevator Company and that the chattel mortgage was subject to litigation. The trial concluded on March 23, 1968, with a jury verdict in favor of Farmers Elevator Company. After receiving credit for claimed offsets, final judgment in the amount of $29,666 was entered against Dressel on July 12, 1968, Nunc pro tunc, March 23, 1968.
Thereafter, on July 24, 1968, the trial court entered an order of sale and Sheriff Vincent Bianco conducted the sale on August 16, 1968. The aircraft was purchased by Irvine and Althoff for $3,775.
Sandhouse commenced this suit against defendants Bianco, Irvine and Althoff, claiming that he was the true owner of the aircraft and demanded judgment against the defendants in the amount of $4,500, the alleged value of the aircraft. The defendants moved for summary judgment which was granted by the trial court. Sandhouse assigns several alleged errors and requests that this court enter judgment in his favor. The alleged errors are not material to the determination of this case. The real question presented is whether Sandhouse had any interest in the airplane enforceable against these defendants.
Sandhouse contends that the granting of summary judgment herein was improper for the reason that his complaint raised issues of fact which would only have been resolved by trial. As stated in Terrell v. Heller & Co., 165 Colo. 463, 439 P.2d 989:
'The procedural rule allowing summary judgment, however, is designed to pierce through the allegations of fact in pleadings and to avoid an unnecessary trial where the matter submitted in support of a motion for summary judgment shows that 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'' (citations omitted)
The affidavits filed by the defendants in support of their motion for summary judgment revealed that there were no issues of fact presented, the only conflict being one of law. Thus, the trial court did not err in disposing of the case by way of summary judgment. We further hold that the trial court did not err in ruling in favor of the defendants.
The statute of frauds (1965 Perm.Supp., C.R.S.1963, 59--1--14) is applicable to the facts of this case and dispositive of the issues presented. 1965 Perm.Supp., C.R.S.1963, 59--1--14 provides:
'No delivery of change of possession--effect.--Except as otherwise provided in section 155--2--402, C.R.S.1963, every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sole or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith, and this presumption shall be conclusive.'
There was no delivery or change of possession of the aircraft from Dressel to Sandhouse. Sandhouse filed no counter-affidavits to the motion for summary judgment, but did argue that the statute was inapplicable on the grounds that change of possession was made impossible by the repossession by Farmers Elevator Company. We find no merit in this argument. Fish v. East, 10 Cir., 114 F.2d 177, held that the Colorado statute on fraudulent conveyances admits no explanation excusing non-delivery.
The attempted transfer to Sandhouse from his client took place during the trial on March 21. Judgment was not entered until July 12. During this period of nearly four months, Sandhouse made no effort to assert his purported interest or to attempt to obtain possession of the aircraft. Sandhouse ahd actual knowledge that the aircraft was to be sold. When a person having an interest in property, knowingly stands by and allows it to be sold under a judgment or decree without asserting his title or right or making it known to the bidders, he is afterward estopped to set up his claim. Such an act is inconsistent with the idea of ownership. See, In re Smith Estate, 103 Colo. 91, 83 P.2d 333; Moul v. Thompson, 91 Colo. 323, 14 P.2d 1004. Sandhouse asserts irregularities in the judicial sale proceedings. However, if an owner has knowledge of an irregularity in the proceedings, but permits the sale to be made without objection, he is estopped to later contest the validity of the proceedings. See, Mesa County Co-op Ass'n v. McKinney, 81 Colo. 513, 256 P. 13. See also, 31 C.J.S. Estoppel s 92.
Judgment affirmed.
SILVERSTEIN, C.J., and DUFFORD, J., concur.