102 P. 590 | Mont. | 1909
delivered the opinion of' the court.
On September 3, 1898, Jeremiah Hore executed and delivered to Elizabeth C. Whitney (now Elizabeth C. Myers) a conveyance in form a deed, by which he transferred to her lot 10, block 6, of Bernard’s addition to Butte. Thereafter an action was commenced by Hore against Whitney to have the deed declared to be a mortgage. Upon the trial of that ease special interrogatories were submitted and answered, and these findings adopted. The court decreed the deed to be a mortgage, and found that the net indebtedness from Hore to Whitney, secured by the mortgage, was $1,785.13. This decree was entered on October 20, 1903, but for some reason Hore did not tender the money or receive the deed back for the property. Some time thereafter M. P. Gilchrist commenced an action to foreclose an attorney’s lien upon lot 10. He made Elizabeth C. Myers a party defendant, and she filed an equitable counterclaim for the foreclosure of the mortgage mentioned in 1Tore v. Whitney. Upon the trial of that cause, the court found that there was then (December 20, 1905) due to Mrs. Myers the sum of $1,616.06 after charging her with certain rent, which amount was declared to be a lien upon lot 10, superior to the lien of Gilchrist. A decree of foreclosure was duly made and entered, which directed the sale of the property and the proper application of the proceeds. From that decree Mrs. Myers appealed to this court, with the result that the cause was remanded to the district court with directions to proceed to determine the amount of rent with which Mrs. Myers was properly chargeable. (Gilchrist v. Hore, 34 Mont. 443, 87 Pac. 443.) Pursuant to the directions of this court, the district court heard evidence, and thereafter modified the decree of December 20, 1905, to read that the amount then due Mrs. Myers was $2,357.76. For some reason not apparent, there was not anything further done. A sale under the decree was not made, but Mrs. Myers continued in possession of
We have encountered great difficulty in attempting to determine just what matters are urged upon us for determination. Many questions are propounded in the brief of counsel for appellant, but some of these at least are not raised by the specifications of error, and some of the specifications assigned are not
1. Some of the questions suggested by counsel have been set at rest by the former proceeding. For instance, the ownership of this property is not open to further inquiry. That question was determined in Hore v. Whitney. It was there decided that Hore owned the property and that Mrs. Whitney (now Mrs. Myers) had only a mortgage upon it, and that judgment is conclusive upon the question of. ownership.
2. While there are some cases holding that in a bill to redeem it is necessary to allege a tender, this is not the general rule. It is generally held sufficient that the bill discloses a readiness and intention to pay the amount found due. This is the effect of the decision in Mack v. Hill, 28 Mont. 99, 72 Pac. 307, and is the rule announced in 17 Ency. of Pl. & Pr. 965, and 8 Current Law, 1042. The function of a suit to redeem is to adjust the equities of the parties (8 Current Law, 1041); and, where a deed absolute on its face is decreed to be a mortgage, some kind of an accounting is usually necessary, and, because of this fact, it is generally impossible for the party seeking to redeem to make a tender, since the amount due is unliquidated and uncertain. This is true of the suit before us. If Gilchrist had assumed to make a tender, he would have been altogether uncertain as to the amount to be tendered. The rule is well stated in 27 Cyc. 1855, as follows: “Where the bill for redemption is framed on the theory that the mortgage debt or some portion of it is still due, it must contain a tender or offer to pay the sum so admitted. If the amount due is unliquidated or disputed, it is sufficient to offer to pay such sum as the court shall find or determine to be justly due, or whatever sum may be found to be due upon taking and stating the account between the parties; and no such offer is necessary where plaintiff alleges that defendant has been already overpaid out of the proceeds of the property.”
4. Complaint is made in the brief that there was not any allowance made to Mrs. Myers for repairs, improvements, insurance, or for her services in-earing for the property. But our attention is not directed to any evidence upon these matters which was excluded, or anj offer of proof which was refused. Of course, if the court excluded the evidence, it could not find upon these questions. But there are not any specifications of error directed to the refusal of the court to hear testimony upon any of those questions. If any.errors were committed with respect to any or all of these matters, it was the duty of counsel to point out such errors to this court; for it is not the duty of this court to search the record for errors. We commence our investigation of every appeal with the presumption that the trial court did not err.
5. Section 6763, Revised Codes, provides: “Upon a trial of a question of fact by the court, its decision or findings .must be given in writing and filed with the clerk within twenty days after the case is submitted for decision.” This cause was submitted to the court in October, 1907, but the decision of the court was not rendered until June following. It is earnestly contended that the equitable counterclaim of defendant Gilchrist should have been dismissed because of the failure of the trial court to observe the provisions of the section quoted above; but this would be a manifest injustice. The litigant is not responsible for the failure of the court to perform its duty. If Mrs. Myers had desired- action upon the matter at an earlier date, this court was open to her to apply for a writ of mandate to compel the district court to decide the case. California and Utah each has a statute similar to our sectisn 6763 above, and
6. It is suggested in the brief of counsel for appellant that the court did not compute interest upon Mrs. Myers’ debt at the correct rate; but, when the judgment of December 20, 1905, was rendered, her debt was merged in the judgment, and the judgment draws interest at the rate of eight per cent per annum (section 5214, Revised Codes), and this-appears to have been the rate considered by the court.
7. It is a rule of well-nigh universal recognition that, “on redemption from a mortgage under which the mortgagee has acquired and retained possession, he must account and give credit for the rents and profits of the premises during the period of his occupation, and it is immaterial whether he holds under a formal mortgage or under a deed absolute in form but intended as a security.” (27 Cyc. 1878.) But the extent to which this rule is to be carried is involved in some obscurity. However, after a somewhat extended review of the authorities, we think the doctrine most harmonious with reason and equity is that: “If the mortgagee personally retains possession of the mortgaged premises, he will be chargeable on his accounting with the reasonable value of the use and occupation thereof, amounting to the fair rental value of the premises for the period.” (27 Cyc. 1841.) This same rule applies if a mortgagee, though himself not actually in possession, does not keep an accurate account of the rents received and is guilty of such misconduct as to make a resort to this rule equitable, or if such mortgagee has not exercised reasonable care in selecting an agent to look after the property, or if, having exercised due care in selecting an agent, the agent does not exercise reasonable care to keep the property rented. But, on the other hand, if the mortgagee by reason of his absence or other excuse is not personally in possession of the property, but depends upon the interposition of an agent, and
This record discloses that Mrs. Myers lives in California, and also employed an agent in Butte to look after this property. The evidence does not disclose that her occupancy of the property was wrongful, so as to bring her within the operation of the rule announced in section 6069, Revised Codes. However, in computing the amount of rent with which Mrs. Myers was chargeable, the trial court adopted the rule of the value of the use and occupation of the property, and that, too, without regard to the care exercised by Mrs. Myers in having the property managed. In this we think the court erred.
A new trial of all of the issues does not seem to be necessary, and the motion for a new trial will be denied. The cause is remanded to the district court,, with direction to determine the amount of rent with which Mrs. Myers is properly chargeable, according to the views herein expressed, to compute the interest upon $2,357.76, instead of $2,351.76, and to further modify the decree by limiting the time within which the respondent Gilchrist shall effect a redemption, and the time ought not to exceed ninety days from the time the decree is finally entered as modified. When the court has finally determined the amount of rent with which Mrs. Myers is properly chargeable, it will then modify the judgment according to the suggestions here made. Remanded for further proceedings.
Remanded.