Opinion
April 22, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1065
Hyman D. Landy, Denver, for plaintiffs-appellants.
Ronald S. Stern, Granby, for defendant-appellee.
COYTE, Judge.
In this quiet title action, the judgment entered recognized the validity of an outstanding security interest, and plaintiffs appealed. We affirm the judgment.
J. D. Jacobs and V. L. Burham entered into a contract to purchase certain property in Grand County which contract was recorded in Grand County on October 15 1957. On July 22, 1963, they assigned their interest in the contract to P. R. Jacobs to secure the sum of $3,600 advanced by him to them. This assignment was also recorded in Grand County, on July 22, 1963, and provided that, upon payment of the sum advanced, P. R. Jacobs would execute a quitclaim deed to the subject land and that the assignment would thereafter be null and void. No due date was stated in the instrument.
On September 21, 1963, with the outstanding assignment of record, J. D. Jacobs and Burham obtained a deed to the property. Capital Industrial Bank obtained a judgment against J. D. Jacobs and Burham, levied execution, and obtained a deed to the property as a result of a sheriff's sale on April 11, 1966. Plaintiffs then acquired title from the bank on January 3, 1967, and commenced this action on July 31, 1970, to quiet the title to their property in themselves against the interest of various persons in the chain of title including that of J. D. Jacobs, V. L. Burham and P. R. Jacobs, the holder of the assignment.
P. R. Jacobs filed an answer asserting that he had a lien on the property by virtue of the assignment and demanded strict foreclosure. After trial to the court, plaintiffs' title was quieted in them subject to the security interest of R. P. Jacobs. It then ordered strict foreclosure of the lien of P. R. Jacobs against the property which it found to be in the amount of $3,600 principal, $769.20 interest, and $21.50 costs, for a total lien to be foreclosed of $4,390.70.
On appeal, plaintiffs claim that it would be necessary for P. R. Jacobs to have obtained service of process against the original assignors of the assignment before the security interest could be foreclosed. They contend that since service of process was not had on J. D. Jacobs and Burham by P. R. Jacobs, he cannot foreclose his interest in the property. We disagree.
J. D. Jacobs and Burham were before the court by virtue of their having been served with process by publication and foreclosure of their interest in the property could be ordered in the quiet title action. It is undisputed that plaintiffs are the owners of the property and that they purchased the property with notice of the interest of P. R. Jacobs in the property. P. R. Jacobs' claim is against the property. He does not seek any relief from J. D. Jacobs or Burham.
Plaintiffs contend, however, that the claim of P. R. Jacobs against J. D. Jacobs and Burham is barred by the six year statute of limitations. s 13--80--110, C.R.S.1973 (C.R.S.1963, 87--1--11). Hence, citing s 38--40--112, C.R.S.1973 (C.R.S.1963, 118--5--12) which provides that the lien created by any instrument shall be extinguished at the time the indebtedness secured by the lien is barred by any statute of limitation of this state, plaintiffs argue that the lien is no longer enforceable.
In support of this reasoning, plaintiffs argue that the trial court made no finding that the six year statute was tolled as to Burham and that the action would be barred as to him and that therefore P. R. Jacobs could not enforce his claim.
The trial court found that J. D. Jacobs had moved from the State of Colorado in 1964 and since that time has been out of the state. It also found that the whereabouts of Burham is unknown although efforts have been made to locate him since 1964. Hence, it concluded that the six year statute was tolled since 1964 against J. D. Jacobs and the lien continued in full force and P. R. Jacobs was entitled to enforce the same. See s 13--80--126, C.R.S.1973 (C.R.S.1963, 87--1--27).
We read the trial court's finding to be that the claim against Burham was also tolled because he concealed himself and could not be found. However, that is immaterial. Section 13--50--101, C.R.S.1973 (C.R.S.1963, 76--1--1) provides: 'All joint obligations and covenants shall be taken and held to be joint and several obligations and covenants.' Furthermore, s 13--80--121, C.R.S.1973 (C.R.S.1963, 87--1--22) provides as follows:
'In actions commenced against two or more joint contractors, or joint executors or administrators of any contractor, if it appears on the trial or otherwise that the plaintiff is barred by the provisions of this article, as to one or more of the defendants but is entitled to recover against any other of them . . . judgment shall be given for the plaintiff as to any of the defendants against whom he is entitled to recover . . ..'
Therefore, an enforceable obligation remained against, at least, J. D. Jacobs, and thus P. R. Jacobs' lien is not extinguished and can be foreclosed.
Contrary to plaintiffs' contentions, compliance with the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 as amended, by P. R. Jacobs was not necessary in order for him to obtain the relief demanded. His decree of strict foreclosure was against the property. Plaintiffs were admittedly not in the armed forces. Failure to comply with the Act might affect the quality to the title a purchaser might be buying at the foreclosure sale or that plaintiffs would have after their quiet title decree, but it would not affect the claim of P. R. Jacobs. A judgment entered without complying with the statute is not void, but only voidable at the insistence of the serviceman. He alone can take advantage of it, and then only upon showing that his interest has been adversely affected. Lyle v. Haskins, 24 Wash.2d 883, 168 P.2d 797.
Plaintiffs argue that even if strict foreclosure should be allowed, they should not be required to pay interest. Section 38--40--106, C.R.S.1973 (C.R.S.1963, 118--5--6) provides that if no time of payment is specified in an instrument creating a lien, the instrument shall be considered due and payable on the date of the recording of the instrument. Section 5--12--102, C.R.S.1973 (C.R.S.1963, 73--12--102) provides that creditors shall be entitled to receive interest, when there is no agreement as to rate, at the rate of 6% Per annum, for all moneys after they become due. Accordingly, interest should have been computed from July 22, 1963, the date that the assignment was recorded, rather than the date of the demand for strict foreclosure contained in the pleadings. However, since P. R. Jacobs did not file a motion for new trial or file a cross-appeal, the allowance of interest from February 26, 1971, will not be disturbed. American Factors Associates, Ltd. v. Triangle Heating & Sheet Metal Co., 31 Colo.App. 240, 503 P.2d 163.
Judgment affirmed.
PIERCE and BERMAN, JJ., concur.