26 Mont. 163 | Mont. | 1901
delivered, tbe opinion of tbe courts
Tbe defendants pncbased at sheriff’s sale under a .decree of foreclosure, tbe land of one Harris. Upon tbe coming in of tbe sheriff’s return, on tbe 8th day of July, 1897, a deficiency judgment for $290 was docketed in favor of Cowell, tbe plaintiff in that action and also tbe plaintiff in this, and against Harris, tbe defendant therein. On tbe 10th day of July, 1897, tbe defendants, being' desirous of obtaining immediate possession of the land so purchased by them, entered into negotiations with Harris, they offering to pay him for bis equity of redemption tbe sum of $350, and Harris promising to convey for that price if be could get a receipt from tbe plaintiff in full .of all demands. On tbe next day Harris signed and acknowledged a deed therefor and left it in tbe possession of one Cal-kins upon tbe express condition, agreed to by tbe defendants, that be should not deliver it until the defendant Albert May delivered to Calkins a receipt in full of all claims and demands which,tbe plaintiff held against Harris. Tbe condition in respect of tbe receipt was shown to have been for tbe benefit of Harris only, tbe performance of which be might waive. ■ There was no evidence tending to prove that tbe defendants, or either of them, promised t to procure or deliver tbe receipt. Tbe receipt was never obtained. At tbe time tbe deed was signed tbe defendants paid $10 to Harris on tbe purchase, price. Thereafter, but ¡on tbe same day, tbe plaintiff caused the sheriff to serve upon tbe defendants a copy of tbe writ of execution issued upon tbe deficiency judgment, together with a notice that any debts owing by them to Harris were attached. Tbe defendants made answer to tbe garnishment by denying that they were, or that either of them was, indebted to Harris. On tbe 13th day of July, 1897, Calkins, with whom tbe deed.bad been left in escrow, prepared another deed in which Harris was named as tbe,-grantor and the defendants as the grantees, conveying tbe same property described in tbe first deed. In company with one of tbe defendants, Calkins went to Jhe ranch of
The single question upon which the case as presented to this court must he decided, is whether or not the defendants were indebted to Harris at the time the garnishment was served upon, them. The court made special findings of fact, the fourth and fifth of which are as follows: “Fourth. That on the 10th day of July, 1897, when the notice of garnishment was served on the defendants, the said Benjamin N. Harris had, executed a quitclaim deed of his equity of redemption to; a tract of land to said May Brothers, for a valuable consideration upon the following conditions, to-wit: Said Harris placed said deed in the hands of C. B. Calkins, and at the same time instructing said Calkins not to deliver said deed to said May Brothers, until
Other special findings have to do with tbe conduct of the defendants and Hands after tbe service of garnishment- Among them is one. that there was no new bargain on July 13 when tbe
Hnder tbe findings, we must therefore bold that at tbe time of the garnishment tbe defendants were not indebted to Harris, and hence tbat there was no debt attached by tbe process of garnishment.
For these reasons tbe judgment and tbe order appealed from are reversed and tbe cause is remanded for a new trial.
Reversed and remanded.