Rader v. Taylor

duties.” 55 66, page C.J.S. Mandamus section 109. exceptions general quoted

While there to the rule (see 74, above, general Jur., Mandamus, in 34 Am. section page 864) clearly this them. There case does not fall within Board, is no defines and indication after court regard bridges in duty repair delimits its to the caused its perform duty. works will not thereafter its The writ by striking mandate should be out thereafter modified “and to bridges good repair.” maintain said foregoing

For the trial judgment reasons the court modified, affirmed as cause to be remanded to the district proceed court to opinion. accordance with this CASTLES, MR. ADAIR, JUSTICES ANGSTMAN and THE FLACHSENHAR, HONORABLE W. Judge, R. District sitting place BOTTOMLY, of MR. JUSTICE concur.

LESTER RADER, C. RADER and MYRTLE B. Plaintiffs

and Respondents, TAYLOR, Defendant, v. GARVIN C. Ap (FRANCIS) TAYLOR,

FRANCES Defendant pellant.

No. 9875. (2d) Pac. 480.

Submitted Feb. 1958. Decided Nov. 1958. Rehearing Denied Jan. Joseph Gary, Bozeman, H. Burke, B. Landoe and B. Hibbs & Sweeney, Billings, Landoe, Joseph Gary II. B. R. F. B. Hibbs, argued orally, appellant. for & Picotte, Hooks, Picotte,

Loble Helena, and P. F. Gene A. argued orally respondents. for

MR. JUSTICE ANGSTMAN: brought

This action was plaintiffs to obtain restitution of certain real property Meagher County plaintiffs sold to defendants under a Like- payments. contract for installment plaintiffs sought injunction wise enjoining restraining an removing cutting defendants improvements from and from removing logs trees and saw order until further of the court. originally

The cause was trial April set for on before the court a jury. without day On that defendant Frances Taylor $58,000 tendered in cash as in full for settlement claims made plaintiffs. rejected. offer Defend- This was jury ants then demanded granted. trial which was The cause was July jury then continued trial for until 23. After was July selected sworn the trial cause was continued for until the opening day At of court on that and before evidence plaintiffs was introduced made a motion for on judgment pleadings. again Counsel for full payment tendered on objected reasonable notice in exchange for a He also deed. to the motion of a because want The motion thereof. judgment pleadings day! sustained on was accordingly. was entered

Judgment favor Taylor, judgment It is that defendant Frances A. met At outset we are with motions to dis- appealed. has is that appeal reasons: The first of which miss the for several transcript timely filed. The facts reference was not following: are the thereto August 1, judgment rendered on Notice of

The was September 11, day 1957. On the same the filed appeal was on transcript judgment roll. On affi- of the appellant ordered obtained necessity therefor an order was showing davit the extending time to file judge on the from the trial October transcript appeal on transcript 11, 1957. The the to December 5, 1957. was filed on December the district appeal had taken to court

After been authority time for longer court to extend the no had transcript of a on filing appeal. an from

However, appellant obtain order the fact that did may be considered purporting trial court to extend the time guilty preparing laches in determining whether she was 93-8019, transcript appeal. statute, her on Under our section any objec- it provided no * for appeal “that can be dismissed ** objection is if of such tions to the record the cause * * * by perfecting the satisfaction record removed court, justice thereof, hearing of a mo- of the or a before the tion dismiss.” Likewise, VI in part, subd. of of the rules of this court Rule “ ** *

provides: delay serving it that appear if [in filing transcript] part has been without laches on delay appellant, appeal his vdll not dismissed for such until filing has reasonable time been allowed for record.” part, 3 of follows: “No provides, Subd. the same Rule appeal shall file be dismissed failure to the record within required by Rules motion to dismiss these unless the appellant, shall have been filed notice thereof prior record; however, to the filing provided: appeal upon dismiss an its own motion where Court appears appellant guilty been of laches.” has transcript hearing

Here the was filed before of the mo- tion to appeal, dismiss are satisfied that de and we guilty serving filing fendant was of laches record ground on appeal. The motion therefore dismiss on overruled. dismiss, was ground, the second motion appears

undertaking and void. appeal was defective Taylor, was about defendant, Frances the record that when 424 perfect appeal the her counsel obtained from the an order court staying

trial judgment upon filing execution of the the good of a and sufficient $7,500, bond in the amount of condi- that “appellant tioned pay against will all costs awarded her appeal on the or exceeding-$300, on dismissal thereof not during possession of the property involved in said action appellant the aforesaid that not commit, she will suffer to committed, any that judgment waste thereon and if the appealed from shall be appeal or the dismissed that affirmed appellant the said pay occupation will the of value the use and of the said property appeal of the until the de- possession thereof, of livery exceeding $3,000 of the amount per year.”

The undertaking appeal entry on reciting after judgment favor of awarding restitution of the $1,500 attorneys’ and costs fees recites appellant damages will and costs which be award- against ed her the appeal on a dismissal or on thereof not ex- ceeding $300. undertaking appeal provision on then made for the

surety to $7,500 be further bound in sum of considera- stay tion of the judgment. execution of the Plaintiff con- undertaking tends on appeal is so uncertain and am- biguous as undertaking to be void. The is sufficient to meet requirements of sections as an under- 93-8005 93-8006 on taking appeal. ambiguity undertaking so far as

If there be ground no supersedeas, that would furnish relates to the appeal undertaking -want of an for for dismissal of for Compare Michigan Co., Stove 48 Mont. Marlowe v. costs. appeal ground motion to dismiss on 137 Pac. 539. The same and the is denied. must be also question propriety of the court’s then come to the We judgment pleadings. on the sustaining the motion action judgment stand cannot be- first contends Appellant

425 complaint facts sufficient constitute cause does not state cause action. A record judgment pleadings motion for searches the permits pleadings prior an examination of the party making Pleading, 427, page motion. C.J.S. section 870; Cheney, College York 160 Neb. Board of Trustees of v. City Sup., (2d) Rochelle, 71 N.W. Rose v. New (2d) 900; (2d) Lipski Schwartz, App. N.Y.S. v. Ill. 577, (2d) 679, Brickell 364 City, N.E. Kansas Mo. v. (2d) 342, (2d) S.W. 41 A.L.R.

Appellant specifically plaintiffs’ complaint contends that is insufficient because the notice of cancellation of the contract upon served by is not authorized pleaded in the complaint therefore case if and stands as no given notice of yet cancellation has been them. to Briefly complaint plaintiffs alleges as sellers entered into a contract for the sale of certain described land to the de- 6, fendants on purchase March 1952. The price $67,- total was 400; that defendants a payment $15,000 made down of and agreed to $3,000 balance in installments; was to paid be on 1953, $3,000 or before 1, November or on before 1, 1954, November and ten additional installments were to $4,560, payable be made annually, of each commencing on unpaid November 1955. The balance was to interest draw at the rate of four percent annum. per payment Time of was made of the essence of the contract. The contract was made part a complaint provisions: contains and these Buyers

“And in of the failure of case to make either any payments, part interest thereon or or perform thereof part any hereby on their of the covenants made and entered into, payments shall, then the whole said and interest at the by foi’feited giving election Sellers be and determined to Buyers ninety days (90) in writing, of the intention of contract, to setting Sellers cancel and determine this forth in contract, said notice the amount due and place, by Buyers- can and when and where be made mutually agreed by- understood and and between parties to ninety (90) days this Contract that is a reasonable and Buyers sufficient notice to of fail- be to said case perform ure hereby part of the covenants their made on into, obliga- all entered and shall sufficient to cancel tions part fully hereunto reinvest them Sellers with all right, hereby agreed conveyed, title interest Buyers payments shall all them on forfeit made buildings, all right, their title and interest Sellers, in improvements fences or shall other be retained full and as a reasonable rental for the satisfaction damages in liquidation of all them sus- above-described and right posses- tained, they shall have the to enter and take premises sion aforesaid.” that when defend- One of the affirmative defenses averred 1, 1953, in the November payments in default due on ants were agreement into they entered an and November was Standby Agreement, effect of which plaintiffs called payments. Plaintiffs admit that such postpone those being in Defendants de- was entered into. Standby Agreement 1, 1955, attempted payments on November fault on give cancellation. notice of proceed under by on upon the defendants notice served The following: contained the November ‘‘ ** * the neglected and failed, refused you have contract, to-wit: under said payable and following due sums terms the of said con- due under $3000.00 of The sum “1. November, 1953; day 1st of before or deed at tract for terms said con- under the of due $3000.00 sum of The “2. November, 1954; day of 1st at before the for deed tract the terms of said con- under $4560.00 sum of “3. November, 1955; day 1st of at or before the for deed tract principal on $2096.00, being interest of The sum “4. said con- the terms of contract, due under said on unpaid sum November, day of the 1st at or before tract im- taxes assessed and being $147.94, of “5. The sum posed $147.94 on land year said for said amount of being interest, together penalty of amount taxes with and interest, paid which taxes together penalty and have been by the undersigned.

“You further undersigned, pursuant are notified that to the deed, terms said for intend of to cancel days terminate expiration the contract at the of you time of upon you of further service are pursuant notified that texms conti'act, said the under- signed have payments elected and do elect that the whole paid by you interest be under terms of said $52,400.00 to-wit: the sum of principal $2096.00 interest $147.94, thereon and taxes, penalty interest, being the total of $54,643.94, payable you sum are by due and the undersigned paid bj^ you at the National Park Bank Montana, in Livingston, days at time within 90 after your upon you service of this notice and that failure so to make of said sum $54,643.94 total will forfeit and * * * determine said contract. “* ® * unless said sum above $54,643.94, mentioned to-wit: by has you paid been provided days as above within 90 of service of this notice you, obligations all under the terms of said conti’act deed behalf undersigned are can- undersigned celled and the will fully reinvested with all right, title and interest in and to the property agreed to be conveyed under the terms you contract for deed and Taylor the said Taylor Garvin C. (Francis) and Frances payments shall forfeit by you all made under said contract for deed and all your right, title and interest buildings, improvements fences or other shall be retained the under * # *” signed authority requires no citation of sustain proposition strictly pursue vendor must pre- course foreclosing vendee’s rights scribed there particularly when it involves a forfeiture the pay under generally ments made vexxdee. See C.J.S. Vendor and 428

Purchaser, 462, 426; Contracts, 17 page section section C.J.S. 402, 892; Co., page Thompson Life 110 Lincoln Nat. Ins. v. 105 521, (2d) 683; Doran, Mont. 126 Mont. Pac. Tomsheck v. 598, 256 (2d) 538, compare Copeland, Pac. 186 Gulick v. 640, Or. (2d) 207 Pac. 1042.

In statutory provision the absence of an agreement

that effect maturity cannot be accelerated. debt 374, 92 Purchaser, 422, pages 375, C.J.S. Vendor and section 453, 35; Jur., Purchaser, page note 55 Am. Vendor and section 858, Annotation, Williams, 290; 77 A.L.R. Better v. 203 note Pinson, (2d) Md. Fox v. 172 Ark. S.W. question here does not an accelera- contain The upon that provides clause. All it that default tion provided pay as whole the contract the vendee the seller be forfeited. ments and interest shall at the election of to declare the entire It not seller elect does state give installments due. It does authorize seller future shall set cancel the contract which notice writing notice in Obviously that said contract.” forth “the amount due setting forth will later become a notice what does not authorize complaint It the contract. follows therefore due under of action sufficient to constitute cause does not state facts requisite given not defendants because have called for contract. The notice called due, only past all sums but also payment in full not This, before due the contract. as later to under sums become separate authorize. In fact contract does not stated, the it is provided: in the contract clause per- buyers will not be understood “It accept Sellers will pay mitted per twenty-five more than price purchase mentioned above price year.” one purchase of said cent, (25%) beyond went the terms upon notice served attempted make all future install- far as so of the contract place payable. underook to ments of in con- that the beyond specified upon a burden tract. in applying the as involved

The situation is much same must the application state In cases the a tax deed. such the as to enable owner delinquent due as taxes so amount by paying redeem such amount. correctly be stated been amount must

It has held the of an incor The statement in notice be valid. order the Hinz v. Mussel proceedings. amount fatal to the rect due is Tilden 502, 1113; v. Chouteau County, shell 82 Mont. 267 Pac. 231; Kroger, Mont. County, 398, 85 Mont. 279 Morse 87 Pac. v. 160, County, 93 Mont.

54, 285 Pac. Glacier Shubat v. (2d) Pac. slight holding not as that a error

We are to be understood notice, owing in stated to due and the as to the amount must the as held in paid, would notice some invalidate dissenting in the foregoing cases. relied on the The cases that a opinion of Adair of the fact Mr. Justice are illustrative error the amount stated in the notice will not slight due as In of Montana Wheat Land Co. invalidate notice. the case 620, Ry. 139 N.E. it was Co., v. Northern 308 Ill. Pacific re it the notice was invalid because demanded contended that notice and that it demanded serving of the cost of opinion greater a sum than was due under contract. than the con not how much more was demanded does indicate complaint was made that called for but the fact that tract serving is indicative of the fact included the cost of the notice discrepancy that there was not much between amount demanded and the amount due. case, court, having con- Wheat Land Co.

In Montana sufficient, justified holding notice was was that the cluded specified the time must within purchaser that the un- in this case the notice due. But was the amount tender obligation part pur- on the there was no authorized and purported in the within the stated anything to do chaser forfeiture. prevent notice, to the contract, Under before forfeiture could be obtained ' obliged give seller ivas a valid notice.

Likewise that case as well the case of Forest Preserve Real Miller, Improvement Estate Co. (2d) v. 379 Ill. N.E. dissenting on in opinion, relied differ this in that buyer seeking was to rescind the contract and recover what he tat t paid had because of the miss emeu of the amount due.

In dissenting none the cases on in opinion relied did it appear placed seller that the had an interpreta- unwarranted upon buyer tion on he whereby called theory sums yet due on the that the contract contained an clause, acceleration which it did not.

Here amount stated was an based erroneous con- struction of contract. assumed that the contract had an clause, has acceleration which it not. The error was substantial actually past in The amount. amount due at the the notice given approximately $13,000, was was whereas notice called payment $54,000 in prevent excess of in to order a for- certainly error An of such feiture. dimensions invalidates notice. uphold

To here on the notice here re- forfeiture quires rewriting plaintiffs of the contract between and de- fendants. taking

Instead of the contract as which written stated that “shall, and payments interest at the election sellers be giving buyers ninety days (90) forfeited and determined to in writing, of the intention sellers cancel and deter- to in setting mine forth said notice the amount due upon said contract” we must revise and rewrite the contract so accomplished by giving ninety days forfeiture that a the intention sellers to terminate notice of the contract due “which notice need not set forth the amount under the ’ ’ contract. as it written, we are take the contract not at We must order accomplish rewrite it in a forfeiture. liberty in in equity certainly are not law or favored Forfeitures

431 it accomplish that should the exeht the court not to as this particularly in ease such rewriting the contract all sums make full buyer has offered to where has forfeiture been before notice of due or become due valid the contract. given under required pay the ought not to be

Furthermore defendants correctly $13,000, admittedly was de- due which having at the it forfeited manded in the notice risk too by plain- event held contended finally should tiffs that the contract contained an acceleration clause. above-quoted

Counsel for contend the clause appearing is the standard acceleration clause sales contracts. A is, Such is the case. usual “then all of said clause debt hereby secured shall become due and collectible.” Bohan v. “* * * 495, Harris, 586, Mont. Pac. 587. the total immediately balance due under shall become due * * *” payable 584, Asplund, Silfast v. 93 Mont. * * (2d) 631, pay- 20 Pac. 636. then whole of said “* shall, party at first ments and interest the election of said * * *” immediately payable become due and White v. Jew- ett, (2d) Mont. 78 Pac. in question

The under the contract here is not suffi- language due, not yet installments authority to declare future to be cient complaint on this account fails state payable. opinion dissenting The statement action. a cause of in their answer Adair admitted Mr. Justice required by the served them as had been con- that notice simply the answer “admits point a fact. On tract is not plaintiffs 1955 the day November caused that on 3rd marked Ex- defendants, a written notice upon the be served complaint.” plaintiffs’ part A made amended and a hibit required that notice was no admission There was by the contract. which must be question presented, and deter-

The further complaint states a cause of action under mined, whether alleges In substance it that action. second cause of defendants improvements upon have made property plaintiffs belongs contend them forfeited, if the to, and that restrained, defendants threaten and unless improvements will remove the premises. from the It likewise contains an allegation will, that defendants if threaten to and restrained, not “timber, cut and pulp remove wood and saw logs, trees, and thus permanently damaging and irreparably plaintiffs.” plaintiffs

Whether the right they have to restitution or not right do have the to restrain the defendants from com mitting upon property. stipulated waste is expressly This so in the contract. We hold that the second of action in cause the complaint does state facts sufficient to constitute cause of action. However it plaintiffs does follow that are en titled judgment to a pleadings as to it.

As to the second allegations cause of action there- most in are denied by the defendants in their The answer answer. admits that placed improvements defendants have property alleges improvements approxi- that the are worth mately $10,000. allegations respect denies the other with the purpose of improve- or defendants to withdraw remove the ments the property. from The defendants likewise their deny answer each every allegation respect to the cut- ting and removal timber, pulp logs and saw wood trees. They thus deny plaintiffs that permanently are or will be irreparably damaged. therewith, allege affirmatively

In connection plaintiffs agreed they remove cut could timber from wood, logs pulp remove saw and trees in under the payments order to make the contract. enjoined purchaser may cutting be timber

Before removing already cut timber must shown that security impaired will and rendered insuffi the vendor’s Jur., Purchaser, 392, page 55 Am. Vendor and section cient. above-noted, alleged cited. As 814, note and cases therein it is damaged irreparably will be if defendants are specific denial restrained, put not but this is in issue jury presents question in the answer. That a of fact for the security impaired as to whether the the amount will be threatening remove. timber have or to which defendants been are need pleadings present Whether the issues of fact we other say, if some of now determine. Suffice it to the affirmative defenses do not state facts sufficient to consti they subject right tute amendment. a defense should be to Bank, St rack v. Federal 124 Mont. 218 Pac. Land (2d) 1052, and cases therein cited. it defendants, plaintiffs attack the answer of the

If would jury day of the trial be done before the with should judge trial to attendance, opportunity in afforded the issues, any, if tendered them. study pleadings and the must act Obviously, jury is in attendance court when necessarily investigating much time for speedily and without may say relating pleadings. We studying questions or passing reference to amendments that what we have plain certainly applies defendants’ affirmative defense attempted alleged it is tiffs’ first cause of action wherein intentionally maliciously wrongfully, plaintiffs renting prevent defendants from used their influence to it enable them to so as to obtain income payments. If desired information meet the contract they they manner used their influence as to how or what uncertainty to this defense should either have demurred the nature the in definitely more state made a motion to fluence, oppor would have an and in either event defendants tunity hold that the answer as to amend if the court should For the above-stated now stands is insufficient. reasons judgment remanded for trial. reversed and cause HARRISON, and MR. JUSTICE

MR. CHIEF JUSTICE FLACHSENHAR, THE CASTLES, HONORABLE W. R. Judge, sitting place BOTTOMLY, MR. JUSTICE District concur.

MR. (dissenting). JUSTICE ADAIR wife, Myrtle Rader,

Lester C. Rader B. and his at all times herein 2,700 mentioned and they were now are the owners of a Meagher County, acre ranch situate in Montana. 6, 1952,

On Raders March the entered into a written con- Taylor wife, tract for Frances deed with Garvin C. and his whereby Taylors buy (Francis) Taylor, agreed the to the $67,400, Taylors Raders’ ranch for the sum of and wherein the agreed pay stipulated purchase sep- in price to such thirteen together percent arate four installments with interest on all unpaid upon and, installments from the date of said contract payment agreed purchase price, the them in full of such the to Taylors agreed convey by good Raders to to the and sufficient warranty deed, simple all the fee title to such clear of encumbrances. Taylors

Solely by per- of the above contract virtue the were upon possession mitted take the to move of Raders’ ranch. only rights acquired by Taylors the in or to the Raders’ they pursuant ranch were such under and to the were 6, 1952, aforesaid written contract for deed executed on March pertinent portions provide defendants, the whereof the Taylor, plaintiffs, Mr. pay and Mrs. the Mr. and Mrs. were to Rader, purchase price the full as follows: ($15,000.00) at “The sum of Fifteen Dollars or Thousand receipt contract, before execution of this of which is hereby acknowledged. ($3,000.00) sum at or before

“The of Three Thousand Dollars 1953; day 1st of November ($3,000.00) sum of Three Dollars at or before “The Thousand day 1st of November Forty- in purchase price the amount of “The balance of equal ($45,600.00) in ten Dollars Hundred Thousand Six five of Four Thou- commencing awith payments, annual ($4,560.00) before the on or Sixty Dollars said, Hundred Five on or before the 1955 and a like amount day of November 1st until entire day year 1st of November of each thereafter purchase together interest at price paid, shall this (4%) per annum, from the date of per rate of four cent un- time remaining contract on whole sum as above principal payments dates of paid payable on the taxes, impositions or forth, and to assessments set year imposed land, subsequent said legally upon delinquent, except two-twelfths before same become agree 1952 taxes And pay. of which Sellers case of Buyers interest payments, either or to make failure of of a/ny part perform any or the covenants thereon thereof hereby into, said part and entered then whole their made shall, payments at and interest the election Sellers be for- Buyers ninety days (90) by giving and determined feited writing, deter- the intention to cancel and Sellers setting contract, mine said notice amount forth place, when where time and Buyers. mutually payment by be can made understood by agreed parties and and between the to this Contract ninety (90) days to be is a reasonable and notice sufficient Buyers perform to said case failure of of hereby part into, on their entered covenants made and and part be obligations shall cancel all hereunto on the sufficient fully right, and them all in- Sellers re-invest title and of hereby agreed Buyers conveyed, terest shall to be and forfeit payments by right, all and all their made them on buildings, improvements interest other title and in all or fences by Sellers, in shall be retailed and as a reason- full satisfaction in liquidation able rental above and described by sustained, they right damages shall them and have the of * '* * possession premises to enter and take aforesaid. of is not to be transferred or agreed “It that this contract by writing without the consent assigned Buyers having first obtained. Sellers been notice of default

“It is understood and by regis- provided may personally served hereinabove tered and complete mail service shall the Sellers de- positing in a United States Post notice, Office said enclosed envelope, an sealed, necessary postage prepaid with the thereon, and Buyers addressed to of them or either at Livingston, Emphasis supplied. Montana.” and only one by called for the above contract Taylors paymen due, made was initial pay- down paid able and March Taylor

Mr. and Mrs. were unable the next two in- stallments agreement and, pursuant called for the written “standby” to a agreement, later Raders, entered with the into the 1953 and payments 1954 installment were deferred until 31, 1955, October but neither such paid installments was specified. the date In addition installment in the sum $4,560.00 1, 1955, on or before November and not in- the “standby” agreement paid. cluded in Following was not these breaches agreement of the written the defendants Taylor, Rader, 2, 1955, on November sent the following Taylor, to the defendants viz.:

“Notice Taylor (Francis) Taylor “To: Garvin C. A. Frances deed, “Pursuant a certain contract for dated the 6th day March, 1952, by and between Lester C. Rader and Myrtle Sulphur Rader, wife, Springs, B. husband and of White Montana, designated Taylor as the ‘sellers’ Garvin C. (Francis) Taylor, wife, Frances A. of White husband joint right Sulphur Springs, Montana, as tenants with survivorship, designated in common, not as tenants therein ‘buyers’, Taylor (Francis) Frances Garvin C.

“You, the said hereby you to, are notified that referred Taylor hereinabove with the neglected comply terms failed, and refused have you in that have for deed mentioned contract the above of following sums due neglected to failed, and refused contract, to-wit: said payable under and said con- under terms of $3000.00 “1. The sum of due 1953; day November, of for at or before the 1st tract deed said con- due under terms of $3000.00 “2. The sum of day November, of for at the 1st tract deed or before the terms said con- due under of $4560.00 “3. The sum of November, 1955; at before the 1st of tract for deed principal $2096.00, being on the sum interest “4. The terms said unpaid due under the contract, sum on said November, 1955; 1st contract at or before the im- $147.94, being taxes assessed and “5. The sum of year $147.94 posed 1954, said amount of on said land for the penalty interest, together with being the amount of taxes have been penalty and interest taxes, together with by undersigned. paid undersigned, pursuant further notified that the

“You are deed, to cancel said intend the terms of days from the expiration of 90 terminate contract at the you you are further time of service of notice pursuant contract, terms of the under- to the said notified that pay- whole signed elect that the have elected and do you by the terms paid to be under interest ments and $52,400.00principal and the sum of to-wit: penalty in- $147.94, taxes, $2096.00 interest thereon $54,643.94, payable are being the total sum of terest, paid you be at undersigned and you Montana, at Livingston, Park Bank National upon you and days service of this after the within total sum of payment of said failure so make your said contract. will and determine $54,643.94 forfeit men- sum above unless said notified that “You are further you paid pro- as above $54,643.94, has been to-wit, tioned upon you, days this notice of the service of vided within contract for deed of said the terms obligations under undersigned cancelled and the undersigned are behalf of the title and interest right, with all fully reinvested will conveyed under terms agreed and to the of said contract for you deed Taylor the Garvin said G. (Francis) Frances Taylor shall forfeit all payments by you made under said your contract for deed all right, title and interest in buildings, all improve- fences other ments by shall be undersigned retained the in full satisfaction and as a reasonable rental for the in said described liquidation in by damages of all undersigned the sustained and the undersigned right shall have the and will possession re-enter and take premises of the in described said contract for deed.

“Dated this 2nd of November, day Lester C. Rader

“/s/ “Lester C. Rader Myrtle B. Rader “/s/ “Myrtle B. Rader” At time, 2, 1955, November the date the whereon above-quoted notice agreed upon so authorized and in the contract, given, single payment was not a installment called required by for and original sup- both the the contract and plemental “standby” agreement paid by the de- had been Taylor by plaintiffs fendants or received Rader. Taylor complaint made no whatever about sufficiency notice at the it was served above upon ninety days and, within them or within thereafter ninety days specified in in provided so the notice and for original absolutely Taylors to ab- nothing did They solve themselves from their defaults under contract. any part past in- wholly failed and omitted to stallments for called contract. plaintiffs May 24, 1956, the commenced this

On Rader Taylor. However such suit was against the defendants action days expiration some after the brought not until Tay- ninety days specified in the notice so served in contract. for and provided lors and alleged no- complaint Rader In their Taylor required upon the defendants served tice had been complaint allegation the de- and this their herein. answer admitted fendants the defend- appeal, on this filed this court In her brief challenge time, attempts to Taylor, the first ant Francis A. for them, contending but one sufficiency the notice by demanding only point, namely: demanding sums to installments, but also past due much. future, plaintiffs have asked too become due Taylor urges words, In here other the defendant Francis just than by demanding payment of sums other that plaintiffs’ entire notice was there- delinquent installments, by invalidated. support such

The fail contentions. authorities fully informed the plainly, properly and defend- The notice payments Taylor of each and all of installment called ants they had had for contract which become due required to on such pay, failed to and defendants were act proper payment make tender and of the sums and notice and past duty This de- amounts then due and demanded. perform. omitted fendants failed and court, appeal In her on the this Fran- brief the defendant Taylor complaint cis A. asserts that her answer to the sufficiency had generally district court she denied va- lidity given plaintiffs. The of the notice defendants is when a is admitted and denied in an rule that fact both controlling. admission Thus are the defendants answer the is by their adequate bound admission that notice was received not sufficiency and the of the notice did become and is appeal. an nor issue in the case on this plaintiff material which the states a The notice fact entitled to cancellation. sellers are correctly states rule that a seller majority decision

The prescribed by strictly pursue the course must this purchaser’s rights confuses rule with foreclosing —but of cancella- giving applicable deed. provided in the contract for tion as compliance Strict required with the contract that notice be days. for 90 indisputable provision was strictly complied specifical- with here. In addition the contract ly provided precisely what the notice should contain. The con- required tract that the notice set forth “the due upon amount said contract place time and when and where ” can be made Bujmrs. Each and all these essential contained, items above-quoted are in the notice. wholly pay $3,000 failed to the two install- ments 1, 1953, 1954, due “standby” November under the agreement; they failed to $4,500 $2,096 install- 1, ments they November to pay failed the taxes year for the 1954 in the amount of $147.94. The written no- tice November plainly stated and informed de- fendants that intended cancel the contract at the expiration days of 90 from the time service of such notice days unless within such such paid. installments were What if the plaintiffs in their notice should also demand more than was then due? What rule then controls?

In 91 C.J.S. Vendor and page 1084, Purchaser section the rule set out follows: vendor

“The demands more than ishe entitled fact purchaser avoiding as a to receive condition from for- does not render the void since the notice is feiture forfeiture long good it contains as as one matter on which the vendor give to Emphasis supplied. entitled notice is of forfeiture.” Land Ry. Co., In Montana Wheat Co. v. Northern Pacific 876, 620, 626, 879, 139 N.E. Ill. where Illinois con court applicable statutes, sidered the Montana the vendor’s notice necessary to forfeit misstated the amount re intention contract, here, in provided instate the contract. The for served, At payments. stallment the time notice to cancel was payments Court., “ag in the words of the Illinois installment $250,000” unpaid. were gregating over The Illinois Court concerning “The states notice to cancel: notice that required paid the amount to be reinstate 1, 1915, $195,000 January $275,535.06, and interest on plus There, case, as in instant the ven- cost service.” fatally defective, dee it asked claimed notice was because past for more than the Illinois due installments but the Court provide there shall held: “The contract not what con- does stitute a notice of default further than that it be a notice in writing assuming forth as neces- that amounts set sary are, appellant, the contract reinstate as contended not correct, provides pay- the measure itself necessary reinstatement, appellant, by tendering ment amd days amount shown to be the 30 due the contract within prescribed in the thus able notice would have been to avoid by appellant any even that at- contended forfeiture. tempt any amount, was made to make a nor does the tender of bill show payment payment other than the initial $70,000 supplied. was ever Emphasis made on the contract.”

The above rule was followed in Forest Preserve Real Estate Improvement Corp. 385, Miller, (2d) v. 379 Ill. 41 N.E. 526, 530. payment In that ease the vendor’s notice demanded for taxes which were not under the The court contract. quoted approval Wheat holding the Montana Land ‘‘ case, supra, saying: Co. appellee demanded more fact than it was receive, entitled not of itself render the did forfeiture In void. Wheat Land Northern Pa Montana Co. v. Railway Co., 139 N.E. cific Ill. where ven misstated dor’s of intention to forfeit the amount neces sary mis reinstate the it was claimed that such right to gave statement the vendee a rescind the contract and court, however, money. return of its This refused demand the contention, pointing to sustain that out that the contract itself necessary provided for reinstate the measure of by tendering that amount ment, appellant, and the within notice, prescribed by would have been able to avoid demand, in his no forfeiture, and the fact a vendor to, forfeiture, more than he is entitled will not defeat tice of forfeiture; the forfeiture notice contains one matter but if 442 give forfeiture,

on no which he is entitled to notice of such [Citing good. tice is rule. appears general This "Washingto This Iowa, is the rule in nand California. eases.]” 91; Harris Thode, See Gibson v. 209 N.W. v. Iowa 228 Improvement Co., Seattle Land & 122 Wash. 211 Pac. 1066; Dugan, 68 Pac. Adams & McKee Land Co. v. Cal. App. 226, 228 Pac. 681. may- provides

In the instant that default case Where, by paying: When, days; cured at the Na- within Montana; What, Bank amounts Livingston, tional Park at due, namely: $3000.00

“1. The sum of due under the terms of said con- November, 1953; day tract for deed at or 1st before the of “2. sum $3000.00 The under the terms of said con- day November, tract for deed at or before the 1st “3. The sum of terms of said con- $4560.00 due under the November, 1955; day tract for deed at or before the 1st ”4. $2096.00, being principal The sum of interest on unpaid sdm due under the terms of said con- day November, 1955; tract at or before 1st $147.94, imposed “5. being The sum of the taxes assessed year 1954, being on said land $147.94 said amount of interest, amount together penalty of taxes with taxes, together penalty paid interest have been undersigned.” plaintiffs separate set forth five bi'eaches

In their notice the the terms they entitled under upon any or all of which were demand a cancellation. the contract to herein holds that majority opinion of this court 2, 1955, upon the defendants notice served November written notice at all fatally constitute no Taylor, is so defective as to forth of action set result thereof first cause and that as a sufficient complaint herein fails to state facts plaintiffs’ Rader and action in favor constitute a cause of wholly I Taylor. holding am With such against the defendants agree. unable to majority opinion

The asserts that the above- this court quoted plaintiffs upon notice which Rader the de- served Taylor beyond fendants went far the terms of the contract so attempted as it to make future installments payable, and however this did not relieve the Taylor obligation get busy pay, from their tender within day period provided unpaid the 90 in the past due installments called for the contract and which obligated days defendants had themselves to within the or suffer cancellation of their contract. majority

The opinion erroneously further asserts that presented situation ap much the involved in same as plying deed; correctly for a tax amount must be stated for the notice to be valid and that the statement in the notice, of an proceedings. incorrect amount is fatal As to the authority majority opinion for such assertions the cites and upon relies following decisions, four Hinz Mussel- viz.: v.

shell County, 82 502, 1113; Mont. 267 Pac. Tilden v. Chouteau County, 231; Kroger, Mont. 279 Pac. Morse v. 87 Mont. 285 Pac. County, and Shubat v. Glacier 93 Mont. (2d) 18 Pac. majority

Next the opinion says: “We are not to be under- holding stood as slight notice, that a error in the as to the amount stated owing to be due and paid, and which must be would invalidate foregoing the notice as held in some of the cases.” holding in the majority opinion

The mischief herein apparent majority ruling when is observed the bases its solely upon apply only decisions which to tax deed cases and prescribed by which involved notices statute which must be may fully strictly complied a tax deed before valid property his issue and the erstwhile owner’s title to divested. application Such tax deed decisions have no whatever to the highly instant case. strict construction does not technical, Such statutory apply the notice A in a herein involved. an to his involving suit forfeiture of owner’s title thing, under tax is one and the issuance of a tax deed laws private in a pursuant private bnt a notice issued prac- matter. To the quite transaction is another business in the ma- ticing applied attorney the rule here announced rule nothing is no jority opinion but confusion. will canse determine position lawyer at it no all. Under will be rule here- put him of court. The what amount of error will out ac- that a applicable general rule, namely, is the correct the de- one matter curate statement and notice of here, by accur- fault be based will suffice. The defaults, grounds came well ately setting separate out five states, good. complaint The within this rule. notice was a cause of action. clearly sets

Waiver Consent. The notice in this case forth the the because buyers the intent of to cancel to con- multiple sellers’ defaults. The notice conforms buyers. By binding upon the sellers and the tract which both them- agreed, and held the terms of the contract the sellers ninety days be a agreement, would selves bound to the event such a default in sufficient time for them to correct by buyers. was so asserted default, what did

When defendants received notice of un- them they Nothing! They suffered the time allowed do? they nor elapse; paid neither der both the contract and notice to limit, day debt; and, at time within the offered to no given, but they protest question validity or did forced possession property they instead remained pos- attempt regain the sellers to resort to a lawsuit an session of their ranch. possession have been purchasers prospective

The defendant made only payment 1952 and the since March of this was at the time the contract down was the them nothing the indebted- paid on have signed. The defendants they pocketed notwithstanding have time, ness since Rader, bound land. The yield from the the entire money they get either their contract, cannot now find plain- part of course of conduct on the property. their The Tay- indulgence. The defendants tiffs been one of Rader has that the contract, given due notice agreed yet lor when to the Taylors nothing did to cure going cancel, Raders were Taylors four and granted was their defaults. The an- they been allowed to one-half times that which would have Wholly entry their suffer the default. swer a lawsuit or they had failing comply with years receipt of the notice bound and some two after provided urge strict for in the the defendants now having to compliance only provisions those of the contract default, In fairness and do with notice of and cancellation. upheld and eqnity, judgment pleadings should be ruling judg- affirmed. The trial in its court was correct Taylor support ment. The defendants cannot make a case to either herein nor their con- allegations pleadings of their A appeal. tentions on new trial will be of no avail. judg- possession

Raders are entitled of their ranch. The ment the district should affirmed. court of R. L. IVINS, MAY EULA Ivins, the Will as Executrix Respond IVINS, MAY and EULA Plaintiffs Deceased HARDY, HARDY MARY J. F. v. ROBERT his ents, Banking BANK., State wife, MILES CITY Corporation; Individually McINTOSH, T. ARTHUR Trus and as Appellants. tee, Defendants No. 9651. (2d) 471. 333 Pac. Decided Nov. 1958. March

Submitted Rehearing 19, 1959. Denied Jan.

Case Details

Case Name: Rader v. Taylor

Court Name: Montana Supreme Court

Date Published: Nov 24, 1958

Citation: 333 P.2d 480

Docket Number: 9875

Court Abbreviation: Mont.