143 P. 986 | Mont. | 1914
delivered the opinion of the court.
This action was brought to obtain foreclosure of a mortgage upon a lot and the buildings thereon, situate at Roundup, in Musselshell county, executed to plaintiff by defendants Carl N. Thompson and his wife, Ida M. Thompson, to secure the payment of a promissory note for $700. The note was executed by Carl N. Thompson on March 1, 1910, and was payable at the end of one year, with interest at eight per cent per annum. The mortgage was executed on June 10 following and was recorded August 5. Default having been made in the payment of the note, on April 18, 1912, Carl N. Thompson and wife executed and delivered to plaintiff their warranty deed conveying to him the mortgaged property. The consideration mentioned in this deed was $825.55, the amount of the note. It was recorded two days later. The mortgage was not formally released. On July
There was no conflict in the evidence. In addition to a disclosure of the conveyances in the order in which they were made, as stated above, these facts appear: Carl N. Thompson is an attorney at law and resides at Roundup. The plaintiff resides at Guttenberg, Iowa. K. Thompson resides at Sioux Falls, South
As between the plaintiff and defendant Carl N. Thompson, the deed dated April 18, 1912, under the facts disclosed, did not
Counsel for the plaintiff argue that the uncanceled mortgage upon the record was sufficient notice to put K. Thompson on inquiry, and hence that when he accepted the deed from Carl N. Thompson he had notice that plaintiff’s mortgage lien had not been extinguished. But for the subsequent deed from plaintiff and his wife to' Carl N. Thompson and his wife, the argument would be plausible. Section 5727 of the Revised Codes declares:
Under section 5752 this may be accomplished by an entry on the margin of the record by the mortgagee, or his personal representative or assignee, over his signature made in the presence of the clerk and witnessed by him. Under section 5753 the satisfaction may be entered by the clerk upon his receipt of the certificate therein described, which, under the following section, he must then record at length. In either ease the discharge is effective. If this is the theory of section 5727, then it would seem to have been the purpose of the legislature in enacting it to leave open to inquiry the status of the mortgage lien in every case in which the evidence of the sale does not express upon its face the intention of it. Upon this assumption, a deed from the
The conduct of Carl N. Thompson was indefensible from any point of view and merits condemnation; for though it be assumed
Ordinarily, in such a case as this, we would order the district court to set aside the judgment and enter a decree for plaintiff. Under the peculiar circumstances disclosed by the record, however, we deem it the better and safer course to direct a new trial. Accordingly, the judgment and order are reversed and the district court is directed to award the plaintiff a new trial.
Reversed and remanded.