158 P. 832 | Mont. | 1916
delivered the opinion of the court.
Some time prior to January 23, 1907, James M. Rhoades, of Missoula, was employed by the plaintiff railway company to purchase certain lands near Turah in this state, among them the southeast quarter of section 35, township 13 north, range 18 west, and on that date he reported to the company through its land commissioner, Thomas Cooper, that an agreement had been concluded for the purchase of said tract, conveyance to be made by deed of “general warranty, showing a title good in law and equity,” for $5,500. Concluding to purchase at this price, the railway company, through Mr. Cooper, directed Rhoades to procure abstracts, and sent him funds to make the purchase as soon as counsel, to whom the abstracts were to be sent, should approve the title. Further instructions were to have the conveyances run to the plaintiff Northwestern Improvement Company, which is a corporation subsidiary to the railway company and holds much of its lands for its benefit. Rhoades procured the abstracts, and sent the same to counsel, who promptly notified Cooper that title was unsatisfactory in two respects, one of which related to a mortgage standing of record in favor of Leonora B. Forbis; whereupon Cooper wired Rhoades not to close the transaction, and mailed him a copy of counsel’s letter, calling attention to the title defects therein noted, and to the fact that the mortgage would have to be satisfied. On May 9, 1907, responsive to an inquiry from Cooper, Rhoades reported that he was holding the money in bank awaiting title clearances, to be paid over “as soon as title is approved,” and on May 25, 1907, he inclosed to Cooper a conveyance of the property from the owners of record, together with a quitclaim and affidavit from
The judgment is assailed upon the ground that, though the appellants took the note and mortgage long after maturity, and therefore subject to any defenses available to the maker, they did not take subject to latent equities in favor of third parties, and therefore the case made, showing that the mortgage appeared of record to be a valid and subsisting lien standing in the
We think the correct result was reached in this case for several reasons:
(a) The right of the appellants could not be established by
(b) Again, the right of the appellants depends upon their situation with reference to the note, to which the mortgage was
(c) Finally, there is reason for the view that the act of
The suggestion is made that, as between the appellants and the respondents, the latter should suffer, because it was their
The judgment and order appealed from are affirmed.
Affirmed.