202 P. 1115 | Mont. | 1921
prepared the opinion for the court.
This is an action by plaintiff for the cancellation of certain judgments, certificates of sale on execution, and deeds described. in the complaint and claimed to constitute clouds upon the title to mining claims alleged to be owned by Henderson Mining Company. From a judgment for defendants and an order denying a new trial, plaintiff appeals.
As a basis for his action, plaintiff details in the complaint all proceedings had in a cause commenced in the district court of the third judicial district for Granite county, which resulted, in the entry of a judgment in his favor and against Henderson Mining Company, a corporation, on June 30, 1916. By virtue of this judgment plaintiff asserts a lien upon what is known as “the' Henderson Mine,” which comprises four claims designated as “Queen,” “Maud S.,” “Sunol,” and “Toe Calk” quartz lode mining claims. The plaintiff has then attempted to allege facts disclosing claims by the various defendants, constituting clouds upon the title of the Henderson Mining Company, which he alleges is the true owner of. the property against which he seeks to enforce payment of his judgment lien, and contends that by reason of these alleged facts he is prevented from securing a bidder upon execution sale, and alleges that he is thereby in effect denied the right
Plaintiff invokes the provisions of sections 6115 and 6116, Revised Codes, in support of his right of action and method of procedure. These sections are:
“6115. A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.
“6116. An instrument, the invalidity of which is apparent upon its face, or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of causing injury within the provisions of the last section.”
Conceding, without, deciding, that plaintiff may maintain his
We find no error in the record, and therefore recommend that the judgment and order be affirmed.
Per Curiam:.For the reasons given in the foregoing opinion, the judgment and order are affirmed.
Affirmed.