¶1dissenting.
¶2I respectfully dissent.
¶3The majority’s reliance upon Dolan v. Flett, 41 Colo.App. 40, 582 P.2d 694 (1978) is misplaced. In Dolan, the lienor was told that he had no redemptive rights, and solely in reliance upon that statement, he did not attempt to redeem.
¶4Furthermore, since § 38-39-103(3), C.R. S.1973 makes tender mandatory, I do not agree with the statement in Dolan v. Flett, supra,that the law does not require a useless tender to the public trustee. The cases relied upon in Dolan in support of that statement are contract cases which do not fall within the mandate of § 38-39-103(3), C.R.S.1973. Thus, as this section controls the disposition of this case, the majority in following Dolan, has disregarded the mandatory tender language contained in § 38-39-103(3), C.R.S.1973.
¶5The trial court found that the lienor had no intent to tender the $170,000 necessary to redeem because of the high rate of interest, the lienor’s lack of desire to tie up that amount of money for the duration of the trial, the value of the property involved, and because of his belief that one of the lien claims on the property was fraudulent.
¶6As the evidence supports these findings, they are binding on us on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453 (1970). In applying Dolan v. Flett, supra,to give credence to Reber’s statement that he relied on the public trustee’s statement when the trial court found to the contrary, the majority thus substitutes itself for the trial court as a fact finding body.
¶7Since the lienor never intended to tender the money to the public trustee, to allow him to later take the position that he relied on the statement by the public trustee, amounts to a fraud on the court which we should not condone.
¶8Accordingly, since the lienor never intended to tender the redemption money to the public trustee, I would affirm the judgment of the trial court.