Opinion
No. 77-464
Decided July 28, 1977.
Trial court determined that agricultural real estate purchased at sale following foreclosure of mechanics' liens could be redeemed for period of six months. Purchaser at that foreclosure sale appealed.
Reversed
1. FORECLOSURE — Real Property — Unplatted — Not In Platted Subdivision — Agricultural — Redemption Purposes — "Developed" Character — Not Significant. Although real property was located in a residential area and was a construction site, it was unplatted and was not a part of a platted subdivision; hence, regardless of its alleged "developed" character, it fit the definition of "agricultural real estate" contained in the statute pertaining to redemption following foreclosure sale.
2. Redemption Period — Seventy-Five Days — Agricultural Real Estate — Applicable — Mechanic's Lien Foreclosure — Six-Month Period — Error. Statute providing that agricultural real estate sold upon foreclosure may be redeemed in 75 days, rather than six months as is permitted for other types of property, is statute applicable where foreclosure of mechanic's lien precipitates the sale, and thus trial court erred in allowing six-month redemption period for certain agricultural property sold following foreclosure of mechanic's lien.
3. APPEAL AND ERROR — Trial Court Ruling — Erroneous — Misled Property Owner — Redemption Period Expired — Extended — Additional 10 Days — After Mandate. Where execution sale of certain agricultural property following foreclosure of mechanic's lien occurred on February 15, 1977, and trial court's order erroneously declaring a six-month redemption period was rendered on March 9, 1977, that order misled owner of the property into allowing the actual 75 day redemption period to expire; hence, Court of Appeals, upon reversing erroneous trial court order, will extend redemption period 19 days from the issuance of its mandate.
Appeal from the District Court of the County of Adams, Honorable Abraham Bowling, Judge.
Pendleton, Sabian Landeck, P.C., Ronald J. Landeck, for defendant-appellant.
Grossman, Galchinsky, Silverstein Grossman, Alan M. Grossman, for defendant-appellee Westland Manor Nursing Home North, Inc.
Defendant Minshall-Bettger Construction Company, appeals from the trial court's determination that six months, rather than 75 days, was the applicable period for redemption of real property purchased upon successful bid at an execution sale following foreclosure of mechanics' liens. We reverse.
[1] Real property owned by the appellee nursing home was purchased at an execution sale by appellant. Although the property is located in a residential area and is a construction site, it is undisputed that it is unplatted and is not part of a platted subdivision. Hence, regardless of its alleged "developed" character, it fits the definition of "agricultural real estate" under § 38-39-102(3), C.R.S. 1973. Rowe v. Tucker, 38 Colo. App. 532, 560 P.2d 843 (1977).
Appellant argues, however, and we agree, that the "agricultural real estate" exception to the otherwise applicable 75-day period applies only to foreclosures under mortgages and deeds of trust, ( see Rowe v. Tucker, supra), and is not applicable to sales upon foreclosure of mechanics' liens or upon sale under execution.
[2] Section 38-22-114(1), C.R.S. 1973, provides that redemption rights upon foreclosures of mechanics' liens are the same as those provided in the case of "sales of real estate on executions." The period for redemption from execution sales is governed by § 38-39-102, C.R.S. 1973, which provides that:
"(1) Except as provided in this section with respect to agricultural real estate, within seventy-five days after the date of the sale of real estate by virtue of any foreclosure of a mortgage, trust deed, or other lien or by virtue of an execution and levy, the owner of the premises or any person who might be liable upon a deficiency may redeem the premises sold . . . .
"(2) In the case of any mortgage or deed of trust upon one or more parcels of real estate, all of which were agricultural real estate upon the date of execution of such mortgage or deed of trust, as such date of execution is recited in such mortgage or deed of trust, the period within which the owner of the premises or any person who might be liable upon a deficiency may redeem the premises sold is six months.
"(3) The term 'agricultural real estate' means, for the purposes of this section, any parcel of real estate which has not been platted as a subdivision, in whole or in part, or which is not a part of any platted subdivision. Whenever the legal description set forth in any mortgage or deed of trust being foreclosed recites that all of any part of the real estate conveyed thereby is within any platted subdivision or describes such real estate as being all or any part of any one or more lots, plots, or blocks of any named subdivision, it shall be presumed for all purposes under this section, and as against all persons, that such parcel is not agricultural real estate." (emphasis supplied)
The emphasized portions of this statute lead us to the conclusion that the legislature intended to treat redemption of agricultural property sold under a mortgage or deed of trust in a different manner than when such property is subjected to other types of foreclosure sales. Hence, the trial court erred in determining that the applicable period for redemption in this case was six months.
Nor do we perceive the result reached here to be incompatible with our opinion in Rowe v. Tucker, supra. In Rowe, the foreclosure was effected through a deed of trust, and the distinction between methods of foreclosure which is dispositive under the present circumstances was immaterial to our prior decision. Thus, the analysis set forth in Rowe is not inconsistent with our holding here.
[3] The execution sale occurred on February 15, 1977. The court's order declaring the six month redemption period was rendered on March 9, 1977. This order misled the appellee into allowing the 75-day period to expire. We therefore extend the redemption period 10 days from the issuance of our mandate in this appeal. See American Factors Ass'n v. Triangle Heating Co., 31 Colo. App. 240, 503 P.2d 163 (1972).
Judgment reversed.
JUDGE COYTE and JUDGE ENOCH concur.