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<br />DISTRICT COURT, PROWERS COUNTY, COLORADO <br />87CV81 <br />AMENDED ORDER GRANTING PARTIAL SUMMARY JUDGMENT <br />GEORGE H. TEt4PEL, GEORGETTA L. TEMPEL, THE ESGAR CORPORATION, <br />DELMAR HOLMES, PATRICIA HOLMES, KEELING FINE FOODS, INC., <br />individually and d/b/a MIDWESTERN FARMS, AND TEMPEL & ESGAR, <br />INC., <br />Plaintiffs, <br />vs. <br /> <br />GENE HAMt9IT, DARLA HAMMIT, and EDNA E. GILLY, TRUSTEE FOR THE ' <br />JEDA TRUST, <br />Defendants. <br />This matter having come on for decision on Plaintiffs' <br />Motion for Summary Judgment, and the Court having reviewed the <br />matters on file herein Finds as follows: <br />FINDINGS OF FACTS <br />1. On December 4, 1978, Defendants Darla and Gene <br />Hammit executed and delivered a Deed of Trust• in favor of the <br />Federal Land Bank of Wichita, hereinafter called Land <br />Bank, securing a loan with certain farm lands located in Prowers <br />County, Colorado, described in Schedule A attached hereto and <br />made a part hereof. The Defendants Hammits and a relative Claude <br />Hammit on or about October 16, 1978, and November 9, 1978, had <br />executed or recorded certain mineral deeds conveying minerals or <br />mineral rights to all or some of the lands described in Schedule <br />A to Aamtex Co., pursuant to law Hammit recorded or caused to be <br />recorded Trade Name Affidavits in 1978 showing that Gene Hammit <br />and Dacla Hammit, the Defendants were carrying on business pur- <br />suant to their association and under the separate business or <br />Trade Name of Aamtex Co. Aamtex Co. was not incorporated until <br />well after December 4, 1978, the date of the Deed of Trust <br />above mentioned•in favor of the Land Bank. <br />Z. The question addressed by the Court in this Order <br />is whether or not the mineral rights in the name of the Hammits <br />individually or Aamtex Co. were subject to the lien of the Land <br />Bank acquired on December 4, 1978, the date of the execution and <br />recording of the above mentioned Deed of Trust. <br />FINDINGS OF LAW <br />1. Colorado law favors the lien theory as to mortgages <br />and Deeds of Trust, holding that a Deed of Trust is not a conveyance <br />of title to land but rather constitutes a lien on said real property <br />