Colorado § 38-22-114 - Disposition of proceeds - execution.

§ 38-22-114. Disposition of proceeds - execution.

(1) The court shall cause said property to be sold in satisfaction of said liens and costs of suit as in case of foreclosure of mortgages; and any party in whose favor a judgment for a lien is rendered, may cause the property to be sold within the time and in the manner provided for sales of real estate on executions issued out of any court of record, and there shall be the same rights of redemption as are provided for in the case of sales of real estate on executions. And if the proceeds of such sale, after the payment of costs, are not sufficient to satisfy the whole amount of such liens included in the decree of sale, then such proceeds shall be apportioned according to the rights of the several parties. In case the proceeds of sale amount to more than the sum of said liens and all costs, then the remainder shall be paid over to the owner of said property; and each party whose claim is not fully satisfied in the manner provided in this section shall have execution for the balance unsatisfied against the party personally liable, as in other cases.

(2) In the first instance without a previous sale of said property to which such liens have attached, an execution may issue in behalf of any such lien claimant for the full amount of his claim against the party personally liable, and he may thereafter enforce such lien for any balance of such judgment remaining unsatisfied. A transcript of the docket of said judgment and decree may be filed with the county clerk and recorder of the county where such property is situated or in any other county, and thereupon said judgment and decree shall become a lien upon the real property in such county of each party so personally liable in favor of any such lien claimant holding any such judgment against any such party so personally liable, as in other cases of recording transcripts of judgment.

Source: L. 1899: p. 274, § 14. R.S. 08: § 4038. C.L. § 6455. CSA: C. 101, § 28. CRS 53: § 86-3-14. C.R.S. 1963: § 86-3-14.

Cross references: For foreclosure of mortgages, see § 38-36-162; for sale of real estate on execution, see § 13-56-201.

ANNOTATION

Assignee of lien claimant has redemption right. Where the proceeds from the sale of land were sufficient to satisfy only a part of a lien claimant's judgment, and thereafter claimant filed with the clerk and recorder a transcript of his judgment, his assignee was a senior lienor and such assignee had the right to redeem. Twogood v. Ocsay, 97 Colo. 300, 49 P.2d 437 (1935).

When allocation of proceeds of foreclosure sale proper. The allocation of the proceeds of a foreclosure sale is proper where the mortgage of the bank provides for the appointment of the receiver and the payment of his costs and expenses lies within the sound discretion of the trial court. Plateau Supply Co. v. Bison Meadows Corp., 31 Colo. App. 205, 500 P.2d 162 (1972).

Applicability of exception to time period under § 38-39-102. The "agricultural real estate" exception to the otherwise applicable 75-day period under § 38-39-102 applies only to foreclosures under mortgages and deeds of trust and is not applicable to sales upon foreclosure of mechanics' liens or upon sale under execution. Kimtruss Corp. v. Westland Manor Nursing Home N., Inc., 39 Colo. App. 542, 568 P.2d 105 (1977).

How execution sale may be set aside. An execution sale may be set aside either on motion in the court which issued the process or in an independent action in a court possessing equitable jurisdiction. Tekai Corp. v. Transamerica Title Ins. Co., 39 Colo. App. 528, 571 P.2d 321 (1977).

Inadequacy of price alone is not a sufficient ground upon which to set aside a judicial sale. Tekai Corp. v. Transamerica Title Ins. Co., 39 Colo. App. 528, 571 P.2d 321 (1977).

Applied in Bassick Mining Co. v. Schoolfield, 10 Colo. 46, 14 P. 65 (1887); Fitch v. Stallings, 5 Colo. App. 106, 38 P. 393 (1894); Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929).