Colorado § 13-52-105 - Legal and equitable interests.

§ 13-52-105. Legal and equitable interests.

Every interest in land, legal and equitable, shall be subject to levy and sale under execution, and the claim or possessory right of any defendant in execution in or to any public lands may be levied upon and sold under execution in the same manner as if the same were held by such defendant in fee simple. Nothing contained in articles 51 to 61 of this title and part 2 of article 41 of title 38, C.R.S., shall be so construed as to give any plaintiff in execution the right to levy on any lands filed on by any person in the Colorado state office of the bureau of land management, department of the interior, and occupied as a homestead by the defendant in execution.

Source: R.S. p. 384, § 52. G.L. § 1453. G.S. § 1883. R.S. 08: § 3613. C.L. § 5901. CSA: C. 93, § 6. CRS 53: § 77-1-6. C.R.S. 1963: § 77-1-6.

ANNOTATION

The proviso in this section has reference solely to lands the title of which still remains in the government. It was inserted as a precautionary measure to prevent any apparent clash between the state statute and the provision of the federal statute making a homestead taken thereunder exempt from liability for any debt contracted prior to the issuance of patent. Weare v. Johnson, 20 Colo. 363, 38 P. 374 (1894).

It refers only to lands filed upon and held merely by possessory title. The language of the statute clearly indicates that the proviso refers to lands filed upon and held merely by possessory title, and not to lands after final proof has been made and to which a receiver's receipt has been issued. Weare v. Johnson, 20 Colo. 363, 38 P. 374 (1894).

Creditor may restrain threatened sale of property in which debtor has equitable interest. A plaintiff is entitled to maintain an action to restrain a threatened sale of property. Under the allegations of the complaint, the judgment creditor was contending that the judgment debtor had an equitable title to the lode claim upon which execution was levied, and neither upon principle nor reason must the plaintiff claiming to be the real owner of all of the property, be compelled to sit back and wait until the claim of the judgment creditor had ripened into a complete and perfect claim. Bell v. Murray, 13 Colo. App. 217, 57 P. 488 (1899).