8 Mont. 32 | Mont. | 1888
This was an action of ejectment, brought by the plaintiffs against the defendants, for the recovery of two mining claims, described in the complaint. There was judgment for the plaintiffs, and an appeal taken from said judgment to this court. The pleadings make a case of ordinary ejectment. There is no special defense set up in the answer of the defend
We shall notice these objections in the reverse order of their statement above, for the reason that the last objection is the main one relied upon for a reversal of this case, and involves a question, not only of interest to the parties litigant in this case, but to the business public generally of this Territory. Said section 371 is as follows, to wit: “A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and sale.” It is contended that the effect of this statute is to so completely modify the common law on the subject of mortgages of real property, that the mortgagor cannot convey the title to the mortgagee, or to third parties as trustees, so as to enable them, under the power thus given by the mortgagor, to sell the real property so conveyed, and cut off his equity of redemption, and that therefore all the power and authority which the aforesaid instrument purports to confer upon Wells and Tyndale, as mortgagees and trustees, to sell the said premises, and make the deed aforesaid to the purchaser, is void, and hence the deed itself is a nullity, and therefore the whole cause of action which rests upon it, on the part of the plaintiffs, must fail. This statute was taken from the California Practice Act of 1851, section 260, and was construed by the Supreme Court of that State long before its adoption by the legislature of this Territory. In the case of McMillan v. Richards, 9 Cal. 365, that court, in commenting upon the stat
We might rest this branch of the case here, especially in view
But we are met with the contention that the power of sale contained in said deed is void under the provisions of our legislative act, and that the words “foreclosure and sale” mean a sale under a judicial decree, and that a sale under a power created by a contract between the parties is not such a “ foreclosure and sale” as is contemplated by the statute. This position is attempted to be met in part, by asserting that the deed in question is not a mortgage, but a deed of trust, and our statute contained in said section 371 does not apply to it, as held in the case of Koch v. Briggs, supra. While the exact boundary between mortgages with powers of sale, and deeds of trust, are not very clearly defined, we think the deed in question should be classed with the former. It is a security for a debt; it provides that the mortgagor shall continue in possession, and in extracting and selling ores, etc.; and declares that the meaning and intent is to mortgage the property, and one of the mortgagees and trustees is the owner of part of the bonds secured, and therefore a creditor. But from the view we take of it we do not think it important to determine to which class it technically belongs. Mr. Perry, in his work on Trusts (vol. 2, p. 163, § 602 d), says: “ Mortgages containing powers of sale, and deeds of trust, to secure a debt due to a creditor, are substantially the same thing at law and equity. At law both kinds of deeds purport to convey the legal title to the grantee, or creditor, or trustee; but in equity the land, the title, and the deeds stand for security of the debt. The debt is the principal thing, and the conveyance of the land is collateral to the debt. The mortgagor in both cases has an estate in the land, called an 1 equity of redemption.’ If he fails to pay the debt, his equity of redemption is barred upon due proceedings had; but if the
2. It is insisted by the appellants, that the description contained in the notice of sale is not sufficient. By reference to the transcript, we find that said description was an exact copy of the description of the property contained in the mortgage, and whatever may be said as to its sufficiency in regard to the personal property, it certainly cannot be contended that it does not describe the real property with great particularity; • and inasmuch as this controversy, which is an action of ejectment, is in regard to the realty, we do not think there is anything in this objection. Besides, the description in the notice as to the personalty is as full as in the mortgage.
Judgment affirmed.