Opinion
Waldo Riffenburgh, Fort Collins, for defendant in error, William H. Butler.
Richard A. Francis, Denver, for plaintiffs in error.
March, March & Sullivan, Fort Collins, for defendants in error, J. Vincent White, Jr., Jerry Vann White, Bernett F. Gindler and Alice J. Gindler.
Page 995
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Greig W. Lang and Carol L. Lang will be referred to as 'plaintiffs' or by name. Defendant in error, William H. Butler, will be referred to as 'defendant' or as 'Butler.' The other defendants in error will be referred to as 'intervenors.'
This action involves the foreclosure of a deed of trust. In February of 1960, Butler conveyed certain property to Alex Blair by warranty deed. A deed of trust from Alex Blair covering the property, dated February 15, 1960, secured Butler. A later and subordinate deed of trust covering the same property was given by Alex Blair to secure a debt owed to Greig W. Lang and Albert E. Sharpe. All of the above documents were duly recorded. On August 28, 1964, Sharpe assigned his interest in this subordinate deed of trust, by an unrecorded assignment, to Carol L. Lang.
Alex Blair defaulted in payment on the note secured by the deed of trust to Butler, and on October 26, 1965, Butler commenced an action to foreclose the deed of trust, properly serving Alex Blair. In this action, Butler filed a lis pendens, but neither of the plaintiffs was served.
The court entered a decree in favor of Butler and ordered a foreclosure of the subject property. Pursuant to that decree, a notice of sheriff's sale was published in February of 1966. In March of 1966, Butler and Greig Lang entered into an agreement regarding the foreclosure which provided, among other things, that the sheriff's sale would be delayed and that Greig Lang was to be given additional time to exercise his right of redemption. The agreement further provided that Greig Lang would purchase the property from Blair. In March of 1966, the property was conveyed by warranty deed from Blair to Lang. Lang, however, did not exercise his rights of redemption under the agreement within the specified time. Notice of sheriff's sale was again published and the property was sold in November of 1966. A certificate of purchase issued to Butler. The intervenors are contract purchasers of the property from Butler, having entered into agreements to purchase in May and June of 1967. On June 1, 1967, a sheriff's deed issued to William Butler and was duly recorded.
This action was brought by plaintiffs under R.C.P.Colo. 105, asking that the sheriff's sale and deed issued out of the earlier foreclosure proceeding be vacated, or that the same be held void as to plaintiffs on the grounds that they were not parties and were not served with process in that action as required by R.C.P.Colo. 120.
The trial court, in its findings of fact and conclusions of law, determined that plaintiff Greig W. Lang, by his actions, was estopped from asserting any claim for relief in this action. We find no error in the trial court's ruling.
It was stipulated that the Langs were aware of the foreclosure proceeding from the time of its initiation. The record further shows that Greig Lang, acting through, and represented by, Blair's attorney, attempted to enjoin the foreclosure proceeding. Thereafter, Greig Lang entered into the contract with Butler, causing Butler to extend him additional redemption time. Lang subsequently defaulted on this agreement. Butler and the intervenors justifiably relief on the above mentioned agreement with Lang, and, upon Lang's default, they were materially induced by it to enter into a later contract for sale of the property.
Under these facts, we rule that the doctrine of equitable estoppel cuts off any legal or equitable rights or privileges which lang may have had. Johnson v. Neel, 123 Colo. 377, 229 P.2d 939. As the Colorado Supreme Court stated in Green v. Hulse, 57 Colo. 238, 142 P. 416:
'* * * Where a person, with actual knowledge of the facts, induces another by his words or conduct to believe that he acquiesces in or ratifies a transaction, or that he will offer no opposition thereto, and the other, in reliance on such belief, alters his position, such person is estopped from repudiating the transaction to the other's prejudice. (Citing cases)
'In cases involving the title to real estate, the doctrine of estoppel by conduct rests upon the broad principle of equity that one who encourages by representations, or even stands by and sanctions the acquisition of land by another, will be estopped to defeat the purchase by afterwards asserting title in himself.' Patterson v. Hitchcock, 3 Colo. 533; Yates v. Hurd, 8 Colo. 343, 8 P. 575.'
Greig Lang is, therefore, estopped from asserting any further rights in this property to the detriment of the defendant and the intervenors.
We further find no error in the judgment against Carol L. Lang. The interest of Carol L. Lang in the property which arose out of the assignment did not appear of record, and since there is no indication that Butler had actual knowledge of her interest, it was not necessary to make her a party to the action or to serve her with process. R.C.P.Colo. 120. Although the interest in the deed of trust owned by her appeared of record to be vested in Albert E. Sharpe at the time the foreclosure action was commenced, Sharpe had no interest in the property, and it was not necessary to serve him or make him a party to the action.
Judgment is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.