2 Mont. 371 | Mont. | 1876
This is an appeal from a judgment for the defendant in an action to set aside certain decrees in favor of the defendant, and for other relief.
The facts material to a determination of the rights of the par
On the same day, and in pursuance of a similar decree, procured by Dodgson upon his lien, the same property was again sold, and Lineberger became the purchaser thereof, and received certificates of sale from the sheriff.
On the 3d of November, 1873, Black pm-chased these certificates from Lineberger, paying him therefor the sum of $774.59, being the amount of his bids, together with the interest thereon, and the penalty. On the 16th day of January, 1874, Black received from the sheriff his deeds for the premises and property so bid off and sold to Lineberger, and on the 4th day of March, was placed in the possession thereof by virtue of a writ of assistance, issued upon petition of Black, and the order of the court thereon.
TTnder this state of facts Yantilburgh rests his demands for a reversal of the judgment herein in favor of Black, mainly upon this proposition: that Black, after he had procured a title to the mill property, caused his mortgage thereon to be foreclosed and the property sold under the decree, himself becoming the purchaser thereof and thereby; that he sold the entire interest of the mortgagor and mortgagee in the property; that he thereby surrendered his title to the mill property procured in the lien cases; that thereafter he could claim only such title in the property as resulted from his purchase in the foreclosure sale, and, therefore, that the writ of assistance, resting its validity upon his title in the lien eases, was wrongfully issued and is void. If the conclusion deducible from the premises is incorrect, then there is not much left in the case. If, notwithstanding the sale under the decree of foreclosure, Black still retained his title by virtue of the sheriff’s deeds in the lien cases, then the writ of assistance was properly issued, providing such deed gave him the right to the possession of the property. What was the effect of the foreclosure and sale of the- mill property upon Black’s previously acquired title ? The object of a foreclosure is to sell the mortgagor’s interest in the mortgaged property, the application of the proceeds upon the debt, and a judgment for any deficiency.
If a mortgagee should procure a foreclosure of his mortgage, and a sale of the property thereunder, and an innocent third person should become the purchaser at such sale, then the mortgagee, we should say, would be estopped from thereafter asserting any title to the property thus sold by his procurement, for the reason that such act would he a fraud upon the purchaser. To permit any thing of the kind would endanger almost every judicial sale, or tend in that direction. But where the mortgagee himself becomes the purchaser, he only strengthens his previous title, and there is no ground for estoppel. He cannot defraud himself. • The assertion of his previously acquired title in such a case injures no one, and no one can complain thereof. The whole theory of the appellant’s case rests upon the doctrine that the mortgagee and a stranger, when they purchase at a foreclosure sale, stand in precisely the same position, and the distinction is entirely lost sight of that, while in the case of a stranger, the mortgagee might be estopped because of fraud, but that in his own case the doctrine of estoppel would not apply, because he cannot defraud himself to the injury of another.
Many authorities are cited to maintain this proposition : That a lien creditor, having elected to enforce his claim by taking judgment, and causing the land subject to the lien to be sold generally, and without reservation, as the property of the debtor, will be estopped thereafter from denying that the complete title was in the execution defendant at the time of the sale, and estopped
. An examination of these authorities will, we believe, show that the principles therein enunciated have their foundation in the doctrine of estoppel, and rest upon the obvious principle that where a mortgagee or other hen creditor procures the property of his creditor to be sold, and a third person becomes the purchaser, such creditor cannot thereafter assert any title to the property which he held at the time of the sale.
One of the strongest cases cited, and the one most relied on by appellant, is that of Fosdick v. Risk.
In that case, the court say: “It wordd seem that when the mortgagee himself, by his own action, as in the present case, causes the mortgaged premises to be sold, it would be the height of injustice to permit him to pocket the money made by such sale, and still hold on to the premises until he could extort from the purchaser a further sum to.relieve the land from his own mortgage.”
In order to make- that case an authority, in any manner applicable to the one under consideration, a stranger should have been the purchaser at the foreclosure sale, and Black thereafter should have attempted to claim the property by virtue of his deeds from the sheriff in the lien cases. Certainly, in such a ease, the law would estop him from extorting money from the purchaser by the practice of any fraud of the kind. But when he purchases the property himself the whole nature of the case is changed, and the authorities relied on are not in point.
It is insisted, however, that Black purchased the lien incum-brances to secure his mortgage; that his mortgage, by its terms, authorized him so to do, and to include in his decree the amount so paid to remove incumbrances for the protection of his mortgage; that the decree includes not only the amount of the note, but also what the mortgagee had been compelléd to pay for taxes and to remove incumbrances, and, therefore, that he surrendered his title by virtue of the sheriff’s deed in the lien cases, and ought not now to be permitted to assert any interest therein.
Proof having been submitted by both parties upon the trial of this issue, we cannot disturb the findings of the court thereon. Such findings are conclusive upon us. This is an appeal from the judgment. There was no motion for a new trial, and we cannot examine the evidence.
The appellant insists, upon another ground, for reversing the judgment, and it is this: That the decrees in the lien cases, having been entered directly against the property, and providing in the first instance for a sale thereof and not for a judgment, as in ordinary cases, as the statute provides. Therefore the decrees are void.
These decrees for the reasons stated are not void. The most that can be said is, that they were irregular.
It is also claimed that tbe description of tbe property in tbe liens and all subsequent proceedings thereunder, in consequence of such description, are void.
The description is as follows: “ Tbe mill, tbe water right, appurtenances thereto, the mill site and a convenient space around said property, of one acre of ground.”
Tbe uncertainty of tbe description does not invalidate tbe liens or the decrees founded thereon. In tbe case of Tibbetts v. Moore, 23 Cal. 209, the description of tbe property in tbe lien was: “ A quartz mill, etc., with such convenient space of land around tbe same as may be required for tbe convenient use and occupation thereof.” Tbe decree contained this description; and on objection thereto tbe court says: “ In cases of this kind it is proper for tbe court, by its decree, to define the amount and extent of tbe land connected with the mill, which is properly subject to tbe lien. Tbe decree in this case, however, does not do so, and this is also urged as an objection. Such an omission will not invalidate tbe decree, but renders it doubtful whether the purchaser under it will acquire any land beyond that covered by tbe buildings.” We are only called on to determine whether such description renders a decree containing it, and based thereon, void, and subject thereby to collateral attack. Tbe authorities are conclusive on tbe question that such description does not render tbe decree void. See Philipps on Liens, § 388; Quackenbush v. Carson, 21 Ill. 99; Caldwell v. Asbury, 29 Ind. 451; Tinker v. Geraghty, 1 E. D. Smith, 688; Kennedy v. House, 41 Penn. 39; McClintock v. Rush, 63 id. 203.
Tbe decrees in tbe lien cases being valid tbe sales thereunder are good, and Lineberger, tbe purchaser at such sales, after tbe time for redemption bad expired, was entitled to a writ of assistance to put him in possession of tbe property. But before tbe redemption period expired, Lineberger assigned bis sheriffs certifi
The amount of the decree in the foreclosure case is too large by about $1,500. The error arose in the computation of the interest on the note. Good conscience would demand that this amount be indorsed on the deficiency judgment, and if, in this proceeding, we had the authority to correct the error, we should do so at once; but in this collateral attack on the judgment and decree, our hands are tied. The proper remedy was by appeal in the foreclosure case.
Another reason assigned for asking that the sales in the lien cases be set aside is, that Black, by his representations and statements at the time of such sales, prevented a fair sale from taking place. His statements were as follows: “ That he had a lien upon the property and had made a motion in court to set aside the judgment, and if they bought it they did so at their peril.”
These statements were in fact true. He had made motions to set aside the judgments; he had a mortgage on the property offered for sale, and any one bidding thereon did so subject to such mortgage. These statements do not seem to have been made to prevent a fair sale of the property, but rather that those proposing to bid thereon might do so understandingly, and state nients and representations so made within the truth ought not to disturb the sale.
Judgment affirmed.