105 P. 554 | Mont. | 1909
delivered the opinion of the court.
On January 12, 1909, George Uffel commenced an action in the district court of Silver Bow county against Ludwig Schatz. In the complaint it is alleged that Uffel is the owner and in possession of certain real estate situated in Broadwater county; that on December 8, 1896, Uffel and his wife executed and delivered to Schatz a mortgage upon the property mentioned to secure a loan of $3,000, and that the mortgage was duly recorded; that Schatz agreed to advance on such mortgage as security the full sum of $3,000, but that he has failed and refused to advance such sum or any part thereof, except the sum of $476.95; that Schatz falsely and fraudulently claims that there is due him by virtue of said mortgage the full sum of $3,000 and interest thereon at ten per cent per annum, from December 8, 1896. It is then alleged that Uffel is ready, able and willing to pay Schatz the sum of $476.95, together with interest thereon, at the rate of ten per cent per annum, from December 8, 1896, to the date of the commencement of the action, and that the mortgage constitutes a cloud upon his title to the property. The prayer is that Schatz be required to accept the sum of $476.95 and interest in full settlement and payment of the mortgage, and that, upon such payment being made, Uffel’s title to the property be quieted, and for general relief. Schatz appeared in the action, and made timely application for a change of the place of trial from Silver Bow county to Broadwater cotmty, upon the ground that the action was one to quiet title and to determine an interest in, or right to, lands situated in Broadwater county. This application was denied, and Schatz applied to this court for a writ of prohibition to restrain the district court of Silver Bow county from proceeding further in.
1. The principal contention is made over the character of the .action instituted in Silver Bow county by Uffel against Schatz. But the facts stated in the complaint in that action leave no doubt in our minds upon this question. Section 5723, Revised Codes, provides: “Every person having an interest in property subject to' a lien has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed.” That section is a part of Chapter I, Title XIY. Section 5709, another portion of the same Chapter, provides: '“Contracts of mortgage, or pledge, are subject to all the provisions of this Chapter.” This, then, was clearly an action by Uffel to redeem from the Schatz mortgage, is directly authorized by law, and is a proper form of action in a case of this character. (Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211.) In Boston etc. R. R. v. New York etc. R. R., 12 R. I. 220, the supreme court of Rhode Island, in speaking of a suit to redeem, said: “Its object is to compel a person to accept a certain sum of money, the effect of which is to release a claim upon property.” The first portion of the prayer in effect asks for this relief, and the mere fact that the plaintiff also prays that his title be quieted is of no moment, since that would follow as of course from the discharge of the mortgage.
2. The object of the suit being to redeem, the action is one in personam. In Kanawha Coal Co. v. Kanawha & Ohio Coal Co., 7 Blatchf. 391, Fed. Cas. No. 7606, the suit was brought in the circuit court for the southern district of New York. The court said: “It is objected that, as this suit relates to lands
The demurrer is sustained, and the proceedings are dismissed.
Dismissed.