Chapter 12 - § 12.16 • ENFORCEMENT

• Jurisdiction: Colorado

§ 12.16 • ENFORCEMENT

In the absence of statutory provisions for other methods of enforcement, a court of equity is the proper tribunal for enforcing liens.⁶²⁹ In particular, the district court has jurisdiction in all suits to foreclose liens.⁶³⁰ If a lien is invalid, the claimant may proceed in a personal action, as in an action on contract,⁶³¹ and is not prevented from enforcing any other remedy which he otherwise would have had.⁶³²

In Colorado, a mortgagee may sue on the note alone, or sue to foreclose alone, or join both proceedings in one.⁶³³ If he obtains a money judgment on the note, he is entitled to execution, and he may collect his judgment in the same manner as any other judgment creditor may collect his judgment. If, by levy or otherwise, he collects the entire amount, the judgment is satisfied in full, and there can be no foreclosure. If he collects only a part of the judgment out of property other than the mortgaged property, the judgment is satisfied to that extent only, and he may foreclose his mortgage for the balance unpaid. If he has acquired a lien on other property by filing a transcript of the judgment, he may sue to set aside a fraudulent conveyance by the judgment debtor of the property to which his lien has attached, and he need not first exhaust his mortgage security. In such a case, he has two liens, and it is for him to determine which he will enforce first.⁶³⁴

A person having a lien interest in land which would entitle him to redeem from a tax sale cannot, by taking a treasurer's deed, eliminate the rights of others similarly interested with him in the property. The equitable principle involved is based upon the mutual rights of lien holders to pay the taxes to protect their lien interest, and the mutual duties of lien holders not to acquire a treasurer's deed to the disadvantage of other lien holders. Under the "common fund" doctrine, the land is a common fund or security for the payment of liens, and therefore it would be unjust and inequitable to consume the entire common fund or security by taking title either directly or indirectly through a treasurer's deed.⁶³⁵

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Notes:

^[629] Int'l Trust Co. v. Palisade Light, Heat & Power Co., 153 P. 1002 (Colo. 1915).

^[630] Fleming v. McFerson, 28 P.2d 1013 (Colo. 1933).

^[631] Jordan v. Lone Pines, Ltd., 580 P.2d 1273 (Colo. App. 1978). See C.R.S. § 38-22-117 (mechanic's lien).

^[632] Hayutin v. Gibbons, 338 P.2d 1032 (Colo. 1959) (mechanic's lien); Jordan v. Lone Pines, Ltd., 580...