93 P. 808 | Mont. | 1908
delivered the opinion of the court.
This action was brought to obtain a decree foreclosing three several mortgages upon lands situate in Jefferson county and described in the complaint, which were executed by Davis C. Turner and his wife, Dima S. A. Turner, to various persons to-secure the payment of as many promissory notes, each one bearing the same date as the one of the mortgages intended to secure it. At the time of his death the plaintiff’s intestate was the owner of all of these notes and mortgages. The second and third of the mortgages cover the lands described in the first, as well, as others, but the record is silent as to what were the several interests of these defendants in any of them. The date of the third, and the junior, mortgage, was January 21, 1903. Thu other two were executed some years prior to that date.
The complaint contains three separate counts, each one setting forth the allegations necessary to warrant foreclosure. George M. Bourquin and the T. C. Power Company were made-defendants; it being alleged that they each claimed some interest in or lien upon the mortgaged property as judgment or at
The action was brought on March 6, 1906. After being served with summons, the Turners filed a general demurrer. This was on March 21st. On April 24th they entered into a stipulation with plaintiff, in which it was agreed that all the allegations of the complaint were true; that the Turners had no defense and would file no answer; that their demurrer might be overruled; that their default might be entered on or after July 11, 1906; and that at any time after that date judgment might be entered against them in accordance with the prayer of the complaint, unless the amounts due on the several promissory notes had been paid. Default was entered against them on July 13th, no payment having been made. In the meantime, on March 14th, the defendant Bourquin filed his answer, admitting the truth of the allegations of the complaint, and alleging that he was the owner of a judgment against Davis C. Turner which had been recovered on February 2, 1904, and was a lien upon the property described in the complaint. He asked that the surplus remaining after the satisfaction of plaintiff’s mortgages be applied to the satisfaction of his judgment. The defendant T. C. Power Company filed its answer on April 18th. It is alleged that on October 16, 1902, it brought its action against Davis C. Turner in the district court of Lewis and Clark county; that it caused an attachment to be issued therein, directed to the sheriff of Jefferson county, and to be levied upon all the lands described in the complaint; that thereafter a judgment was given and made in said action in its favor for $103.85; and that thereafter a transcript of said judgment was filed in
The allegations of Bourquin’s answer were not controverted by anyone. To the answer of the T. C. Power Company the plaintiff filed a replication, in which, after putting in issue many of the material allegations thereof, it is alleged, “as separate defenses, cross-complaints, and counterclaims,” (1) that on February 6, 1901, a judgment was duly given and made by the district court of Lewis and Clark county in favor of the Thomas Cruse Savings Bank, a corporation, against the defendant Davis C. Turner for $610.05; that thereafter a transcript of this judgment was filed and docketed in the office of the clerk of the district court of Jefferson county; that said judgment thus became a lien upon the property described in the complaint; that thereafter Moses Manuel, plaintiff’s intestate, became the owner thereof by assignment; that the same came into the hands of the plaintiff as his administratrix, and that it remains wholly unpaid; and (2) that on September 22, 1902, one Arthur J. Craven brought an action in the district court of Lewis and Clark county against Davis C.' Turner and Dima S. A. Turner; •that he caused an attachment to issue therein, directed to the sheriff of Jefferson county, and to be levied upon the interests of said defendants in the lands described in the complaint; that thereafter such proceedings were had in the cause that on November 8, 1902, judgment was duly given and made therein in favor of said Craven and against Davis C. Turner for $302.50; that on November 10, 1902, a transcript of the judgment was duly filed and docketed in the office of the clerk of the district court of Jefferson county; that thereafter Moses Manuel, plaintiff’s intestate, became the owner thereof by assignment by said Craven; that it came .into the hands of plaintiff, as the adminis
The court found (1) that the mortgage set forth in the first count of the complaint was a first lien upon all the lands described therein; (2) that the one set forth in the second count was a second lien upon the same lands and a first lien upon the other lands described therein; (3) that the liens of the Cruse Savings Bank and the Craven judgments, and also of the T. C. Power Company judgment, followed next in the order in which they are here enumerated; (4) that plaintiff was entitled to have satisfaction of her third mortgage after the satisfaction of these judgments; and (5) that the lien of the Bourquin judgment should be satisfied out of any surplus thereafter remaining. A decree was entered directing the property to be sold, and the proceeds, after the payment of costs including attorney’s fees for foreclosure, be applied to the satisfaction of the different liens in the order mentioned. Pending the action, Davis C. Turner died intestate, and Dima S. A. Turner, having qualified as his administratrix, was substituted as defendant -in his stead. She has appealed from the decree both as administratrix and in her own right.
As heretofore stated, it does not appear what the respective interests of Davis C. Turner and Dima S. A. Turner were at the time the various mortgages were executed by them and the judgments against Turner were obtained. It is a matter of no importance, however, so far as it has to do with the contention made by the appellant. If it be assumed that she has only a dower interest, the decree is open to attack on some of the grounds which are urged against it by the appellant. As to the Turners, the decree was entered by default. Under the stipulation between the plaintiff and the Turners, it should have been entered in accordance with the prayer of the complaint. This should have been done in any event, for the statute applicable
The decree is erroneous, also, in directing the satisfaction of the T. C. Power Company judgment out of the proceeds of the sale, without regard to the interest of the wife. While the decree correctly declared the lien of this judgment superior to the lien of the third mortgage, it could in no event attach as such except to the interest of the husband. It did not attach to the interest of the wife, whether such interest arose out of the ownership of the whole property by her or a tenancy in common with her husband, or out of her right of dower. The same may be said of the lien of the Bourquin judgment upon the surplus remaining after all the other liens were satisfied. His judgment being against Davis C. Turner alone, he had a lien upon his interest only.
It is said by counsel for appellant that since these latter judgments appear in the case, not from allegations in the complaint, but in the answers of Bourquin and the T. C. Power Company, the decree is erroneous in declaring their status. In this contention, however, we think there is no merit. The complaint states in terms that these defendants have or claim interests in or liens upon the premises described in the mortgages or some part thereof, as judgment or attachment creditors, but that their respective interests or liens are subsequent and subordinate to the liens of plaintiff’s mortgages. The prayer demands that the priority of the plaintiff’s mortgage liens be fixed and established, and that the liens of these defendants be declared inferior to them. It is apparent, therefore, that under the statute and the stipulation of the defendants for judgment it was fairly within the contemplation of the parties that the rights as between the plaintiff and these defendants should be adjusted in the decree. The court was therefore authorized to adjust these equities and
For the reasons heretofore stated, however, the canse is remanded to the district court with directions to amend the decree by eliminating therefrom any mention of the judgments belonging to the plaintiff, and, further, to so modify it as to make the T. C. Power Company and the Bourquin judgments liens upon the interest of Davis C. Turner only, whatever that interest may be. "When so amended and modified, the decree will stand affirmed.
Modified and affirmed.
