This is аn appeal from a judgment and decree in favor of the respondent, and also from an order refusing a motion for a new trial. TJpon a verbal objection made to a portion of the record in this case, before its submission, we promised to determine, in the decision upon the merits, what portions of the record brought to. this •court are properly before us for review. In addition to ivhat is contemplated by the stipulation of the parties, and settled in a statement allowed by the court, — which are the notice of motion for a new trial; the pleadings as shown by the statement, which are the amended complaint, the amended separate answer of appellant Story, and the replication, the evidence, objections and exceptions contained in the report of the stenographer,— those other portions of the record which by statute form a part of the judgment roll will also be considered as being properly before the court. B. S. div. 1, § 294, p. 95. These are the original complaint in the action, separate answer of Leander M. Black, answer and cross-complaint of E. W. Toole, demurrer of appellant Story to the original complaint, and his demurrer to answer and cross-complaint of E. W. Toole, motion of Story to strike out parts of complaint, and his motion to strike out parts of answer of E. W. Toole.
The pleadings upon which the case was evidently tried were the amended complaint, the amended and separate answer of Story, and the replication. The action, as indicated by these pleadings, was to foreclose a mortgage made by the appellant Black, through and by his attorney in fact, Z. H. Daniels, in favor of the respondent. The mortgage upon the property described in the complaint was dated the - 23d day of April, 1878, and was given to secure the payment of a certain promissory note for $1,386.17, due
The answer of the appellant Story denies that Daniels was the authorized agent and attorney in fact of Black, “ for the purpose of executing the note and mortgage in suit, or that he ever executed or delivered the same, or that any lien was thereby acquired, or that it was ever acknowledged or certified so as to entitle it to be recorded; and sets up ownership in fee-simple, and possession of the property in question, as against the mortgage of respondent.” The answer also averred title in the appellant Story by deed from Black tо Toole, and from Toole to appellant. The replication, in reply to the new matter set forth in the answer, alleged that Toole and Story, at the time of the respective conveyances to them, had knowledge of the mortgage of the respondent, and of his equities, by reason of which neither of them were bona fide purchasers of the property, and took it subject to the mortgage, and that . both deeds were quitclaim deeds.
Upon the trial it appeared that the deeds from Black to Toole, and from Toole to Story, were quitclaim deeds, and were made subsequent to the mortgage; and also that appellant Story held a deed from the sheriff, made under a sale of the property, by virtue of a judgment rendered in favor of the appellant Story against Black. The judgment was obtained upon an attachment levied subsequent tо the recordation of the mortgage. The evidence also showed that, before the making of the mortgage, Z. H. Daniels and one M. M. Black, who was a son of appellant Black, held a power of attorney from the grantor, Leander M. Black, authorizing them to collect rents, and to transact his general business in Montana territory; but not empowering them, or either of them, to mortgage or sell real estate. But a letter was written by Leander M. Black to Daniels, which being lost or destroyed, verbal evidence was.allowed of its contents; and in relation to it, and other mаtters in the -case, the jury made the following findings of fact, Avhich
As will be seen by reference to the case of McAdow v.
We think that the language of this finding sufficiently indicates that it was the intention of the author of the letter to constitute Daniels his authorized agent to secure the payment of the money upon the property in question. The-letter contained the authority to make the mortgаge. It satisfied the statute of frauds, and its loss was sufficiently
The only objection to the mortgage itself is that it was not properly acknowledged. Our form of acknowledgment of conveyances is the same as that of California, and the acknowledgment of this mortgage is almost identical with that of the mortgage given in the case of Talbert v. Stewart,
Thе attachment and the j udgment under which the sheriffs sale was made, and, of course, the sheriffs deed in pursuance thereof, were subsequent to this mortgage. Such a purchaser is not a bona fide purchaser for a valuable consideration, so as to entitle him to notice of antecedent rights аnd equities capable of being enforced against the judgment debtor. The rule of caveat emptor applies to such a purchaser, and he obtains by the sale only such an interest as the debtor had in the property at best, at the time of the attachment. In Chumasero v. Vial,
The respondent is in no better situation by virtue of his quitclaim deed. The supreme court of the United States has declared that a purchaser under quitclaim deed is not a bona fide purchaser for a valuаble consideration. The grantee in such a deed takes only what the grantor can legally convey, which in this case is the property in question subject to the mortgage of the respondent. In the case of May v. Le Claire,
The rеcord shows several objections to the admission and refusal of evidence upon the trial, made by the appellants, but in most of these the point of the objection is not specifically stated, as required by the statute; and, where it has been set forth, it was properly ruled upon by thе court, or if error, it was not prejudicial. There were objections to the giving and refusal to give certain instructions; but it is not necessary to consider them, for they relate to the general verdict, and would not vary or affect the special findings, and it is upon the special findings that we arrive at the determination of this case.
The judgment is affirmed, with costs.
Judgment affirmed.