214 P. 330 | Mont. | 1923
prepared the opinion for the court.
This action, commenced by plaintiff, Mary A. Hartnett, against defendant, Harve Sterling, was for foreclosure of a mortgage given by defendant to Michael T. Walsh to secure the payment of a promissory note from defendant to Walsh. The complaint alleges the assignment of the note and mortgage to Elizabeth A. Garrington and the assignment in turn to plaintiff. Otherwise the complaint is in usual form. The answer admits the execution of the note and mortgage and the nonpayment thereof. It proceeds to deny the assignments and the ownership of the note and mortgage by plaintiff. It is alleged that the note and mortgage were given to protect the defendant from creditors “unjustly claiming money due from the defendant.” As a further affirmative defense it is alleged that the defendant had at the time of the execution of the mortgage only an equitable interest in the mortgaged premises under a contract of sale and purchase with Walsh, and that the mortgage was given to protect this interest from persons who claimed to be creditors of defendant, and that,
The only question presented is as to the sufficiency of the evidence to justify the decision.
On this appeal we are governed by the rule that the find- ings of fact by the trial court will not be disturbed unless it appears that the evidence clearly preponderates against them. (See Bosanatz v. Ostronich, 57 Mont. 197, 187 Pac. 1009.)
Plaintiff’s proof, taken together with the admissions of the answer, was amply sufficient to make out a prima facie case entitling her to a decree.
The findings of fact were in effect that at the time of the execution of the mortgage defendant was not the owner of the premises mortgaged, but held the same under a contract of purchase; that the mortgage was without consideration, having been given to protect defendant from persons threatening to sue defendant upon unfounded claims; that, after the execution of the mortgage, defendant paid Walsh the balance of the purchase price for the land, and thereupon Walsh executed and delivered to defendant a warranty deed for the premises; that the indebtedness from defendant to Walsh was thereupon and prior to the assignment to the first assignee of the mortgage fully settled; and that plaintiff was not a purchaser of the mortgage in good faith.
It is beyond our comprehension how any other conclusion can be reached from the testimony than that the note and mortgage were at all times recognized and treated by the defendant as valid and subsisting obligations, and that they were actually such. It is our opinion that the evidence does clearly preponderate against the findings, and that the trial court erred in making the findings which were made.
The trial court should have made findings of fact and conclusions of law and entered a decree in conformity with the
We therefore recommend that the judgment be reversed, and the cause remanded to the district court, with directions to make findings of fact and enter a decree of foreclosure in conformity with the foregoing opinion.
Per Curiam: For the reasons given in the foregoing opinion, the judgment appealed from is reversed, and the cause remanded to the district court, with directions to make findings of fact and enter a decree of foreclosure in conformity with the foregoing opinion.
Reversed and remanded.