Radford v. Gaskill

20 Mont. 293 | Mont. | 1897

Buck, J.

It does not appear that any default was entered in behalf of defendant Black in obedience to his prazcipe therefor filed with the Clerk of the District Court on May 22, 1895- When he (Black) filed his motion for judgment on the pleadings, and to strike plaintiff’s amended complaint from the files, the-trial court was confronted with this fact, namely: That, with Black’s own consent, said amended complaint had been filed in the suit. Under these conditions, there was no abuse of discretion in the overruling of said motions.

The main question - involved is whether defendant Black is in a position to urge any defense to this suit on the ground that Radford had no authority to accept a renewal of the note and mortgage belonging to the Godwin estate.

Gaskill, through whom Black claims the ' cattle in controversy, dealt with Radford as the representative of the Godwin estate. So did Black himself. Black’s very mortgage on which he bases his right to the cattle recites that his lien is subject to that of the Radford mortgage. Manifestly, Rad-ford was induced by the action of Gaskill and Black to surrender a security belonging to the Godwin estate, and accept a new note and mortgage. Whether Radford had authority to accept the new note and mortgage becomes immaterial.

W e are clearly of the opinion that the lower court committed no error in holding that Radford was a trustee for the Godwin estate, and a proper party plaintiff to the suit. Black is clearly estopped in the premises. His attitude is that of one who seeks to avail himself of the very rules of law designed and enunciated to prevent such conduct as his in order to deprive the Godwin estate of a security which belongs to it, and which he himself had recognized as belonging to it.

There are other objections urged by appellant, but they are without sufficient merit for discussion. The judgment is affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.