When in any case a writ of attachment or a writ of execution is issued from any district or county court and a levy thereunder is made upon real estate, it is the duty of the sheriff or officer making the levy to file a certificate of such fact with the recorder of the county where such real estate is situate, and, from and after the filing, such levy shall take effect as to creditors and bona fide purchasers without notice and not before.
Source: L. 19: p. 295, § 1. C.L. § 5932. CSA: C. 93, § 40. CRS 53: § 77-5-1. C.R.S. 1963: § 77-5-1.
ANNOTATION
Law reviews. For article, "Foreclosures by the Public Trustee", see 9 Dicta 6 (1931). For article, "Executions and Levies on Tangible Property", see 27 Dicta 143 (1950).
The purpose of this section is to enable the creditor to seize property, and hold it for the satisfaction of the judgment to be obtained in the cause, and of course the lien of the attachment cannot be greater than the indebtedness stated in the affidavit and writ. Tilton v. Cofield, 2 Colo. 392 (1874) (decided prior to L. 19, p. 295, § 1, the earliest source of § 13-56-101).
An imperfect statement may constitute notice. That the plaintiff, by an imperfect statement of his case, may give such notice of his right as will affect purchasers and creditors as well as the defendant in the cause, there is every reason to believe. If, for instance, the creditor should state the facts upon information and belief instead of upon his own knowledge, or if he should claim several distinct sums of money and then state the aggregate amount of them incorrectly, he would probably give to all full notice of his right, although not in the precise manner prescribed by the act. Tilton v. Cofield, 2 Colo. 392 (1874).
Although purchasers, etc., are entitled to rely upon the record as it exists. Purchaser's and creditors who acquire an interest in the property during the pendency of the suit are entitled to stand upon the record as it existed at the time such interest was acquired, and, of course, they cannot be supposed to have knowledge of any matter of which the record does not advise them. Tilton v. Cofield, 2 Colo. 392 (1874).
Purchasers are presumed to have knowledge of the filed statement. Whatever the rule may be as to the defendant, it is clear that purchasers of the attached property take it subject to the lien of the plaintiff for the sum stated in the affidavit and writ, with accruing interest, if he shall obtain judgment in that action for so much. To this extent, the record which is made for that purpose advises them of the incumbrance upon the property, and, therefore, they may be presumed to have knowledge of the fact. Tilton v. Cofield, 2 Colo. 392 (1874).
Until creditors file their transcript or make a levy they have no lien on the real estate. Routt County Mining Co. v. Stutheit, 101 Colo. 254, 72 P.2d 692 (1937).
Applied in Baker v. Allen, 34 Colo. App. 363, 528 P.2d 922 (1974).