Colorado § 38-22-117 - Assignment of lien - failure to support lien.

§ 38-22-117. Assignment of lien - failure to support lien.

Any party claiming a lien may assign in writing his claim and lien to any other claimant or other person who shall thereupon have all the rights and remedies of the assignor for the purpose of filing and for the enforcement of any such lien by action under this article, and the assignment shall be a sufficient consideration as to all other parties for the purpose of such action. Such assignment may be made before or after the filing of the statement of lien. Any such claimant, whether as assignee or otherwise, may include all the liens he may possess against the same property in any such statement, and when more than one such claim is included in one such statement, one verification thereto shall be sufficient. Any person may file separate statements of two or more claims. If, on the trial of a cause under the provisions of this article, the proceedings will not support a lien, the plaintiff and all lien claimants entitled thereto may proceed to judgment as in an action on contract, and executions may issue as provided in such cases, and said judgment shall have all the rights of a judgment in a personal action.

Source: L. 1899: p. 275, § 17. R.S. 08: § 4041. C.L. § 6458. CSA: C. 101, § 31. CRS 53: § 86-3-17. C.R.S. 1963: § 86-3-17.

ANNOTATION

I. General Consideration.

II. Assignment.

III. Right to Personal Judgment.

I. GENERAL CONSIDERATION.

Law reviews. For article, "One Year Review of Contracts", see 36 Dicta 19 (1959).

Section construed. The only legitimate construction to be given this section is one which will permit the enforcement of the evident legislative intent, which is to enable a plaintiff to recover whenever he is entitled to maintain his action against a defendant, but when there is no privity whatever between a plaintiff and defendant, and no contract established between them, a plaintiff cannot recover. Brannan Sand & Gravel Co. v. Santa Fe Land & Imp. Co., 138 Colo. 314, 332 P.2d 892 (1958).

Applied in Hart, etc., Corp. v. Mullen, 4 Colo. 512 (1878); Small v. Foley, 8 Colo. App. 435, 47 P. 64 (1896); Sprague Inv. Co. v. Mouat Lumber & Inv. Co., 14 Colo. App. 107, 60 P. 179 (1899); Trustees of Carpenters & Millwrights Health Benefit Trust Fund v. Angel-Haus Condominium, Ltd., 36 Colo. App. 133, 535 P.2d 259 (1975); Jordan v. Lone Pines, Ltd., 41 Colo. App. 152, 580 P.2d 1273 (1978).

II. ASSIGNMENT.

Assignment vests enforcement right in assignee. An assignment carries with it the lien and vests in the assignee the right to enforce it. Perkins v. Boyd, 16 Colo. App. 266, 65 P. 350 (1901); Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929).

Contract prohibits assignee's enforcement of claim. Where, on default of the principal contractor, the surety on his bond took assignments of lien claims, it could not enforce such claims against the property, the contract providing that the building should be turned over to the owner free from liens. Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929).

Assignee deemed real party in interest. The assignee in an action to foreclose is the real party in interest. Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929).

Burden of pleading and proving valid assignment is upon those who assert it. Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929).

III. RIGHT TO PERSONAL JUDGMENT.

Intent of article. This article does not purport to create personal liability of a landowner for obligations incurred by a contractor in the performance of his contract, but only authorizes the creation of a lien for improvements upon the land of the owner. Brannan Sand & Gravel Co. v. Santa Fe Land & Imp. Co., 138 Colo. 314, 332 P.2d 892 (1958).

Privity of contract required. In absence of privity of contract, lien claimants may not secure personal judgment against the owners. Daniel v. M.J. Dev., Inc., 43 Colo. App. 92, 603 P.2d 947 (1979).

Right to personal judgment for sum due uncontroverted. This section places the right to a personal judgment for the sum due beyond possible controversy, though the lien itself fails. Cannon v. Williams, 14 Colo. 21, 23 P. 456 (1890); Saint Kevin Mining Co. v. Isaacs, 18 Colo. 400, 32 P. 822 (1893).

Even where no lien is allowed, the plaintiff is entitled to personal judgment for the value of materials furnished at request of the defendant. Clark Hdwe. Co. v. Centennial Tunnel Mining Co., 22 Colo. App. 174, 123 P. 322 (1912).

A personal judgment for the amount found to be due may be rendered in an action to foreclose a mechanic's lien, notwithstanding an abandonment of the claim for a lien. Saint Kevin Mining Co. v. Isaacs, 18 Colo. 400, 32 P. 822 (1893).