156 P. 1085 | Mont. | 1916
delivered the opinion of the court.
The complaint herein is in the ordinary form employed in an action to quiet title. It alleges that the plaintiff is the owner and entitled to the possession of the property, and that the defendants claim an adverse estate or interest therein. Warren W. Hurd, and others claiming under him, made answer setting forth that the plaintiff’s claim of title is based upon a deed executed by the defendant Joseph E. Hein, conveying the property to the plaintiff to secure a loan of $50,000; that while the instrument purports to be a trust deed, it is in fact a mortgage, and contains a provision that in ease of default in the payment of principal or interest, the trustee may proceed to sell to the highest bidder at public auction the property, rights, tenements and hereditaments thereby conveyed, or such parts thereof as may be necessary to pay the indebtedness then outstanding; that the defendant Hein defaulted in the payment of his indebtedness, and plaintiff proceeded to sell the property under the above-described power, and became the purchaser at the sale and executed to itself a deed therefor, which is the only claim of title that it has to the property; that the defendant Hurd and those claiming under him acquired their title by conveyance from Hein after the execution of the trust deed, but before the sale, and that the right of redemption conferred by law upon the defendant Joseph E. Hein and his successors in
If it became necessary to define the character of the writing in question, the difficulty would be all but insuperable. It has some of the characteristics of a deed creating an express trust to secure the payment and discharge of an indebtedness. It declares repeatedly that it creates a lien, and therefore it partakes of the nature of a mortgage with a power of sale. It confuses the idea of a deed of trust with the idea of a mortgage. It is a nondescript hybrid which fortunately need not be defined, further than to say that it is some sort of a conveyance for the security of an indebtedness, and contains a power of sale which was exercised in this instance.
Do the provisions of the Code governing the right of
To determine the question before us it is essential that the
On the other hand, the right of redemption arises only upon
An analysis of the statute above, which creates the right of
A sale by virtue of a power contained in a mortgage or deed of trust is not a judicial sale, and does not bear any analogy to one. (Kerr v. Blaine, 49 Mont. 602, 144 Pac. 566.) The right to redemption does not attach to such a sale (27 Cyc. 1449), and for this reason the facts stated in the affirmative defenses—subdivisions 2 and 3—of the joint answer of the defendants "Warren "W. Hurd, Amy A. Hurd, Michael Hasquet
The judgment is reversed and the cause is remanded, with directions to sustain the demurrer.
Reversed and remanded.