31 Mont. 122 | Mont. | 1904
prepared the following opinion for the court:
- Appeal from a judgment of nonsuit, and from an order denying plaintiff’s motion for a new trial.
Plaintiff alleged the execution of a mortgage by her .to defendant Carroll on April 5, 1899, and his subsequent sale of the property therein mentioned, by virtue of a power of sale contained in the mortgage, to his co-defendant Morgan on January
“That plaintiff, laboring under the statements of the said defendants and their attorneys, that this plaintiff had no rights in the premises and was barred of the right of redemption, and laboring under a misapprehension of her rights and remedies, did on the 6th day of February, 1900, pay to the said defendants'the sum of eight hundred and fifty ($850) dollars, and received from said defendants a deed to said property. And •plaintiff alleges that said defendants had no right to demand or receive from this plaintiff any amount in excess of $588, and that the amount so-paid in excess of $588, to-wit, $262, was an overpayment, and paid through -mistake on the part of plaintiff, and said payment was made and caused to be made by and through the fraud, conspiracy and deceitful practices on part of the defendants.
“Plaintiff alleges that her right of redemption under the said sale had not expired at the time of said payment of the said eight hundred and fifty ($850) dollars, and that said time of redemption would not'expire until the 29th day of January, 1901.”
No defects in the method of procedure adopted by the mortgagee in foreclosing the mortgage under the power of sale are alleged by plaintiff. Practically her sole contention is that she had the right to redeem the property within one year after the sale, but because of a mistake of law on her part, which was induced by fraud, conspiracy and deceitful practices on part of the defendants, she purchased the property instead of enforcing her right of redemption.
A mistake of law from which a court of equity will relieve is defined and governed by Section 2123 of the Civil Code, which reads: “Mistake of law constitutes a mistake, within the
The testimony on part of plaintiff discloses that, after the property had been purchased at the foreclosure sale by defendant Morgan, plaintiff’s agent, John B. Bottego, and her attorney, Mr. Maury, applied to Morgan to be allowed to redeem the property, but Morgan refused, claiming that the right of redemption was barred by the sale. He offered the property ro plaintiff for $1,0'00, but after some negotiations took $850 for it. Concerning this transaction Maury testified: “I advised him (Bottego) that our firm, Judge Pemberton and myself, both advised him that in our opinion the question was a very mooted one and difficult to determine either way, hut in our opinion there was no right of redemption. -They acted on that advice in the payment of the money. I was present when the deeds passed from Mr. Carroll to Bottego. This advice that I gave them was after the negotiations with Mr. Morgan in an attempt to redeem the property, which had been sold for the amount of the mortgage, interest and costs of sale.” And again he said: “Mr. Morgan claimed that he had the fee-simple title absolute, and we agreed with those views.” There is no testimony in the record showing, or tending to show, that the defendants did not at all times firmly believe that the plaintiff’s equity of redemption was totally cut off by the foreclosure sale; and neither is there any testimony indicating in the slightest degree that defendants, or either of them, procured the plaintiff to purchase the property through fraud, conspiracy or deceit. As above noticed, it is not contended that the sale was not fairly conducted. The sale having been completed, the defendant Morgan took the position that he was then the absolute owner of the prop
It thus plainly appears that, if it be true that plaintiff,had one year from and after January 29, 1901, in which to redeem the property from the foreclosure sale, there was a misapprehension of the law by the defendants as well as by plaintiff, “all supposing that they knew and understood it, and all making substantially the same mistake as to the law.”
It also becomes apparent that there is a fatal variance between plaintiff’s allegations and her proof, and she did not ask leave to amend the pleading to conform to the proof, as she might have done.
She alleged a cause of action, which, if it comes within Section 2123 at all, comes within Subdivision 2 thereof; the proof she adduced, if it come within Section 2123 at all, comes within Subdivision 1 thereof; both her allegations and proof must come within one and the same subdivision, or she may not recover at all because of a mistake of law. Her allegation of mistake on her part and fraud on part of the defendants utterly excludes the idea of a mutual mistake. Thus the court did not err in granting the nonsuit.
This excludes any consideration of the interesting question as to whether plaintiff’s equity of redemption was barred by the foreclosure sale.
It follows that the judgment and order should be affirmed.
Per Curiam. — Por the reasons given in the foregoing opinion, the judgment and order are affirmed.