1. SECURED TRANSACTIONS — Tax Sale — Treasurer's Certificate — Transfers to Purchaser — Right, Title, Interest — Of Previous Owner. Statute provides that the county treasurer's certificate at a tax sale of distrained personal property shall transfer to purchaser all right, title, and interest of the owner in and to the property sold; accordingly, where the owner is subject to the lien of a properly filed financing statement, the purchaser of the property at a subsequent tax sale takes subject to that lien.
Opinion by JUDGE STERNBERG.
The issue presented by this appeal is whether a purchaser of personal property sold for delinquent taxes takes subject to the lien of a properly filed financing statement. In this replevin action brought by the secured party against the purchaser, the trial court held that the purchaser took subject to the security interest, and therefore granted the secured party's motion for summary judgment. We agree, and affirm.
The pertinent facts are not in dispute. In November of 1972, one Dubbel purchased two backhoes from Southern Colorado Equipment Company and signed security documents. These documents were assigned to plaintiff who filed the financing statement in the office of the Secretary of State on December 12, 1972. Dubbel stopped making installment payments to plaintiff on February 1, 1975. Also, he did not pay the personal property taxes for the years 1973, 1974, and 1975.
The county treasurer distrained the equipment pursuant to § 39-10-111(7), C.R.S. 1973, and defendant purchased it at the subsequent tax sale. Thereafter, plaintiff made claim to the equipment under its lien and filed a replevin action. Plaintiff tendered into court the purchase price paid by defendant. Both parties moved for summary judgment. The trial court granted plaintiff's motion, denied defendant's motion, and defendant appeals.
[1] Section 39-10-111(7), C.R.S. 1973, provides, with respect to distrained personal property, that:
"In all cases of sale, the treasurer shall issue a certificate of sale to each purchaser, and such certificate shall be prima facie evidence of the right of the treasurer to make such sale and conclusive evidence of the regularity of the proceedings in conducting and making such sale. The treasurer's certificate shall transfer to the purchaser all right, title, and interest of the owner in and to the property sold." (emphasis supplied)
Thus, by this statute defendant acquired only Dubbel's interest in the backhoes. Defendant, however, contends that plaintiff's security interest in the property made it an "owner" under the statute and that he purchased at the treasurer's sale not only Dubbel's interest, but also plaintiff's.
Defendant urges that portions of the Uniform Commercial Code, particularly, § 4-2-401, C.R.S. 1973, which provides for reservation of a security interest by a seller, mandate the conclusion that one who retains a security interest is an owner. However, even if the U.C.C. were applicable here, this contention is answered by sub-paragraph (2) of that section which expressly provides that:
"Title passes to the buyer at the time . . . at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest . . . ." (emphasis supplied)
[2] We are not unmindful of the language of § 39-1-107, C.R.S. 1973, which establishes a priority for the lien for unpaid taxes over all other liens outstanding. Our holding here does no violence to that concept. Under that statute, if a secured party retakes secured property, its title would be subject to an outstanding tax lien. See U.S. v. Elliott, 209 F.Supp. 374 (Colo. 1962).
[3] Defendant asserts that, because the county treasurer issued the certificate of sale to him, that official is an indispensable party here under C.R.C.P. 19(a). We do not agree. Complete relief could be and was afforded without the treasurer's presence as a party. The treasurer claims no interest in the property since the tax lien was discharged by § 39-1-107, C.R.S. 1973. Thus the treasurer was not an indispensable party. Compare Sentinel Petroleum Corp. v. Bernat, 29 Colo. App. 109, 478 P.2d 688 (1970), with Orr Construction Co., Inc. v. Ready Mixed Concrete Co., 28 Colo. App. 273, 472 P.2d 193 (1970).
[4] In this case, as noted above, plaintiff tendered into court the purchase price paid by defendant to the treasurer. The amicus curiae seeks to have us rule that a secured creditor must follow this procedure and reimburse the purchaser of personal property at a tax sale, as a prerequisite to enforcing its security interest, and also attempts to raise certain other issues not argued below. We do not reach these contentions. An amicus curiae may not raise issues which go beyond those tried. Denver U.S. National Bank v. People ex rel. Dunbar, 29 Colo. App. 93, 480 P.2d 849 (1970).
Judgment affirmed.
JUDGE BERMAN and JUDGE KELLY concur.