Sklower v. Abbott

19 Mont. 228 | Mont. | 1897

Buck, J.

The first question to be determined is whether the judgment relied upon by appellant was a lien upon the real estate in controversy before it was docketed. The question must be determined by the statute in force at the time. This statute (section 307, Code of Civil Procedure, Division 1, Compiled Statutes 1887) is as follows: “Immediately after filing a judgment roll the clerk shall make the proper entries of the judgment, under appropriate heads, in the docket kept by him; and from the time the judgment is docketed it shall become a lien upon the real estate of the judgment debtor, not exempt from execution, in the county, owned by him at the time, or which he may afterward acquire, until said lien expires. The lien shall continue for six years, unless the judgment be previously satisfied. ” Under said section, it is manifest that this judgment did not become a lien upon the real estate until after the creation of the attachment lien of respondent. The language of said section 307 admits of no other construction, but, as fortifying it, certain language in the case of Creighton v. Hershfield, 2 Mont., on page 390, is worthy of citation. In that case the supreme court of Montana, by Mr. Justice Knowles, in referring to a statute (§ 295, Codified Statutes 1871 — 72; § 358, Code of Civil Procedure; Division 1, Compiled Statutes 1887) requiring a deficiency judgment in a mortgage foreclosure to be docketed in order to constitute it a lien on real estate, said in substance: “The object of having a clerk docket a judgment for a deficiency is that the said judgment may become a lien on real estate, and is also to apprise purchasers of such estate of the amount of the lien thereon. ’ ’ If appellant was damaged by any act of the clerk of the court in failing to docket the judgment, or by any negligence or deceit practiced by the attorneys in reference to such docketing, he should seek redress from them. The allegations of the answer in this respect are wholly insufficient to warrant any redress as to respondent. If he was not a party to any fraud or conspiracy entered into for the purpose of delaying the docketing of the judgment,— if there was any such fraud or conspiracy, — he had a perfect right to have his attachment levied before any such docketing.

In one respect, however, the lower court committed error. The possession of respondent at the time of bringing the suit was directly at issue. If he was not in possession at such time, his title should be determined in an action of ejectment, and, in order to maintain'this action to quiet title, he must not only allege, but prove, possession on his part. (See Wolverton v. Nichols, 5 Mont. 89, 2 Pac. 308; Milligan v. Savery, 6 Mont. 129, 9 Pac. 894.) For the last reason only the judgment of the lower court must be reversed. The cause is remanded, with directions to the lower court to overrule the demurrer and hear testimony on the question of possession.

Reversed.

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