Where real property or any interest therein is by deed conveyed to the assignee, the assignee shall forthwith file with the clerk and recorder of each county where the real estate is situated a notice of the assignment, containing the names of the assignor and assignee, the date of the deed of assignment, when and where recorded, and a description of the property in that county affected thereby, and the same shall be constructive notice to a purchaser or encumbrancer of the transfer of the property in said county, described in such notice.
Source: L. 1897: p. 96, § 8. R.S. 08: § 181. C.L. § 6248. CSA: C. 12, § 8. CRS 53: § 11-1-8. C.R.S. 1963: § 11-1-8.
ANNOTATION
Annotator's note. Cases material to § 6-10-108 decided prior to its earliest source, L. 1897, p. 96, § 8, have been included in the annotations to this section.
The method prescribed by this section must be pursued. Spangler v. Sanborn, 7 Colo. App. 102, 43 P. 905 (1895).
In the absence of the statutory notice, bona fide purchasers and encumbrancers will be protected. Spangler v. Sanborn, 7 Colo. App. 102, 43 P. 905 (1895).
Otherwise, title would vest upon delivery. The deed of the assignor, like the deed of any grantor, conveys the legal title to the property and would, but for this section, vest such title in the assignee upon its delivery. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).
This section in making its record essential to vest title, as well as to constitute constructive notice, gives it the same, and no more, force than any other deed would have when recorded in the county wherein the real estate is situated. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).
Hence, property situated in other counties, notwithstanding the title is vested in the assignee, is subject to sale and encumbrance until the notice prescribed is filed with the clerk and recorder of such counties. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).
It conclusively follows, therefore, that the mere vesting of title in the assignee as to such property does not, ipso facto, place it in custodia legis. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).
The word "encumbrancer" is employed in this section in its broad and general sense and embraces every class of encumbrancers and every class of encumbrances. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).
Whether by contract or by statute. The encumbrance may be created by contract or it may be acquired in pursuance of some statute. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).
Thus, a lien or charge upon land, which binds it for the payment of a debt, is an encumbrance, and the holder of the lien is an encumbrancer. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).
Equal to mortgage. The lien of an attaching creditor is an encumbrance equally with a mortgage. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).