Chapter 11 - § 11.4 • PROPERTY MORTGAGED

• Jurisdiction: Colorado

§ 11.4 • PROPERTY MORTGAGED

§ 11.4.1—Mortgagor's Title

One who has no interest in the property cannot grant a mortgage of the property.⁵⁰

§ 11.4.2—After-Acquired Title; After-Acquired Property

Subsequently acquired property may become subject to the lien of a mortgage if apt words covering it⁵¹ are included in the instrument,⁵² but property in the name of some other person than the mortgagor does not become subject to the lien of the mortgage unless the mortgagor has a legal or equitable interest therein.⁵³ A deed of trust with covenants of warranty, even though made subject to an existing oil and gas lease, covers the reversion when the lease terminates.⁵⁴ A preemptioner or a homesteader may give a mortgage or deed of trust on land before receipt of patent or the receiver's receipt upon final proof.⁵⁵

§ 11.4.3—Fixtures and Crops

A deed of trust attaches automatically to buildings and personal property which are placed upon the land after execution of the deed of trust in such a way as to become fixtures.⁵⁶

In the case of a lien recorded prior to October 1, 1990, an owner of real property may not remove any improvements therefrom (unless the improvements are expressly excepted from the lien) without first obtaining the written consent of the holder of the lien and the holder of the indebtedness secured by the deed of trust or mortgage having the most senior lien which encumbers the real property.⁵⁷ Such removal is a misdemeanor.⁵⁸

The term "rents, issues, and profits" in a deed of trust includes crops.⁵⁹

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Notes:

^[50] Strauss v. Boatright, 418 P.2d 878 (Colo. 1966); GMAC Mortgage Corp. v. PWI Group, 155 P.3d 556 (Colo. App. 2006) ("consent" to a deed of trust is not a grant).

^[51] The words "all of Grantor's right, title, and interest" are words of quitclaim, and are not apt words to describe subsequently acquired property. Premier Bank v. Bd. of County Comm'rs of County of Bent, 214 P.3d 574 (Colo. App. 2009).

^[52] Jarvis v. State Bank of Fort Morgan, 45 P. 505 (Colo. 1896); Fisk v. People's Nat'l Bank, 59 P. 63 (Colo. App. 1899) (fixtures); Patrick v. Morrow, 81 P. 242 (Colo. 1905) (mortgage described property subsequently acquired by mortgagor).

^[53] Farm Inv. Co. v. Alta Land & Water Co., 65 P. 22 (Colo. 1901).

^[54] Associated Oil Co. of Wyoming v. Rector, 50 P.2d 551 (Colo. 1935).

^[55] Wilcox v. John, 40 P. 880 (Colo. 1895); Runyan v. Snyder, 100 P. 420 (Colo. 1909); Hubbard v. Mulligan, 57 P. 738 (Colo. 1899). See Stewart v. McLaughlin, 18 P...