the time suit was commenced. A holder of a negotiable instrument may maintain an action for its collection (section 5899, Rev. Codes); but to state a cause of action in favor of plaintiff, it was necessary to disclose some right in it by virtue of which it main- | tains the action and upon the faith of which defendant, by paying the judgment, may be fully discharged of his obligation and relieved of the annoyance of further litigation at the hands of some one else who may hereafter appear in possession of the notes. The general rule is well stated in 8 Corpus Juris, 885, 886, as follows: "Plaintiff must show title to the bill or note in suit or privity between himself and defendant, or that as the holder thereof, he has the legal right to maintain the action and to recover thereon. .* In an action by the payee against the maker of the note it is sufficient to allege the execution and delivery of the note to plaintiff." Neither the answer of the defendant nor the judgment of the court aids the complaint in this instance. Counsel for respondent are in error in assuming that this court decided in Meadowcraft v. Walsh, 15 Mont. 544, 39 Pac. 914, that an allegation of ownership of the note sued upon is surplusage. The question there determined was one of substantive lawnot one of pleading. The complaint in that action alleged that each of the notes had been duly indorsed and delivered to plaintiff, and that plaintiff was then the owner and holder thereof. The judgment and order are reversed, and the cause is remanded for further proceedings. Reversed and remanded. SANNER, J., concurs. BRANTLY, C. J., so as to give him a road of easy access thereto, Since Const. art. 3, § 14, guarantees just Rev. Codes, § 2894, authorizing county to purchase property, but requiring it first to be estimated and appraised, refers to outright purchase of property for county purposes, but does not apply to acquisition of a right of way under the general highway law. 5. DEDICATION 45- HIGHWAYS-ACCEPTANCE OF LANDS-EVIDENCE-QUESTIONS FOR JURY. Whether county accepted offer of owner of land of right of way for highway on terms specified by him, held for the jury. Appeal from District Court, Beaverhead County; W. A. Clark, Judge. Action by Thomas Flynn against Beaverhead County. Judgment of nonsuit, and plaintiff appeals. Reversed and remanded. Norris Hurd & Collins, of Dillon, for appellant. Harlow Pease and Roy S. Stephenson, both of Dillon, and Frank Woody, of Butte, for respondent. The facts out of which this controversy arises are stated at length in Flynn v. Beaverhead County, 49 Mont. 347, 141 Pac. 673. being absent, takes no part in the foregoing In that case we held that ejectment was not decision. (54 Mont. 309) FLYNN v. BEAVERHEAD COUNTY. (No. 3839.) (Supreme Court of Montana. Dec. 28, 1917.) 1. COUNTIES 200-ACTIONS-LIMITATIONS -"ACCOUNT"-"CLAIM." The claim of the grantor of land for road, against the county for its failure to complete the road or pay him damages, was not an account or claim within Rev. Codes, § 2945, requiring claims to be presented within one year, and section 6450a, requiring actions on claims against a county rejected by the county commissioners to be commenced within six months of the rejection, in view of sections 1395, 1397, 1398, 1399, 1400, and 1406, which provide the exclusive means of acquiring land for highway, and make it a county duty to provide just compensation. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Account; Claim.] 2. DEDICATION 55-HIGHWAYS-PAYMENT FOR LAND-LIABILITY. A landowner who granted right of way for county highway in consideration of agreements to complete the highway to the county seat, a remedy available to plaintiff under the circumstances, but, concluding the opinion, we remarked: "It is not meant by anything here said that the plaintiff is wholly without remedy. He may not thus be deprived of his land without full compensation for it. Upon the plainest principles of justice, the board of commissioners should ascertain the amount to which he is entitled and pay him. In the absence of favorable action on its part, he may maintain his action for it as he at first attempted to do." Plaintiff then commenced this action to recover compensation for the land taken by the county. Among other defenses interposed, the county pleaded the bar of certain statutes of limitations, viz. sections 2945 and 6450a, Revised Codes. These sections provide: the board unless the same is made out in sepa"Sec. 2945. No account must be allowed by rate items, the nature of each item stated, and be verified by affidavit, showing that the account is just and wholly unpaid; and if it is for official services for which no specified fees are fixed by law, the time actually and necessarily devoted to such service must be stated. Every claim against the county must be pre For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sented within a year after the last item ac- | provide just compensation for the necessary crued." right of way. "Sec. 6450a. 2. Actions for claims against a county, which have been rejected by the county commissioners, must be commenced within six months after the first rejection thereof by such board." [1] It will be observed that these sections have to do with claims or accounts against a county, the general nature or character of which is indicated in section 2945. That the subject-matter of this litigation is not such as to give rise to a claim within the meaning of that section is apparent. [2] It is plaintiff's contention that he did not consent to give the right of way for the road in question, but that he demanded compensation which he deemed adequate. He reduced his offer to writing and submitted it to the board with the petition bearing his signature. The writing has been lost, but, according to plaintiff's testimony, the consideration for his granting the right of way over his land was that the road be established in its entirety over the route described At the time the proceedings were taken to in the petition, and that the county fence on establish the road in question, sections 1390- both sides of the right of way across his 1410, Revised Codes, were in force, were con- place. He insists that his offer was accepttrolling, and were exclusive. They gave full ed by the board, the road ordered established recognition to the provisions of section 14, and opened, that it was actually opened article 3, of the Constitution, that private across his land and the right of way fenced property shall not be taken for public use by the county, but that the county then rewithout just compensation, and were design- fused to open it over the remaining portion ed to furnish ample means by which a coun- of the route described in the petition, therety could procure a necessary right of way by defeating the principal object which plainfor public road purposes. (a) A landowner tiff and the other petitioners had in view in might consent in writing to give the right of seeking to have the new road established; way over his premises (section 1395), and that the road petitioned for would have furupon the execution and delivery of a proper nished a direct route to the county seat over conveyance, title passed to the county. Sec- a water grade, avoiding the longer distance tion 1406. (b) He might decline to present and difficult grades of the old road; that the land to the county and claim damages by the road in the condition in which it was way of compensation (section 1395), in which left is longer and less advantageous even event, upon the return of the viewers' re- than the old road, and furnishes no compenport, the commissioners were required to sation whatever to plaintiff for the right of give notice, conduct a hearing, and ascertain way across his land. Plaintiff insists also and declare the amount of damages award- that the fence furnished by the county is ined. Section 1397. If the award was ac- ferior in grade to the fence described by him cepted and the proper conveyance made, the in his offer to the county. According to county was free to declare the road a pub- plaintiff's theory, the county failed and now lic highway so far as that landowner was refuses to make the compensation agreed upconcerned. Section 1398. (c) If the award on and upon the faith of which agreement was not accepted within 30 days, it was he let the county into possession of the right deemed rejected, and the county was remit- of way over his premises. This does not ted to its remedy by condemnation proceed-give rise to a claim within the meaning of ings. Section 1400. A rather wide discre- section 2945, but for the breach of the agreetion was lodged in the board. It was not essential that the compensation to a nonconsenting landowner be paid in money. The consideration for the right of way over his premises might consist of advantages to accrue to him from the opening of the new road over a particular route. Section 1399. As already observed, these provisions were exclusive. They furnished adequate means, and the only means, by which the county could procure a right of way for public road purposes in proceedings taken under the general highway statutes above. In contemplation of law, the nonconsenting landowner received compensation for his land prior to or at the time he relinquished it to the county. There could not arise any possible circumstances under which he could have a claim [4] Section 2894 refers to an outright puragainst the county for his compensation with- chase of property for county purposes, but in the meaning of section 2945. In proceed- it has no application to the acquisition of a ings to establish a new road, the county was right of way under the general highway law. the moving party from the time a suflicient The testimony introduced by plaintiff espetition was presented. The Constitution tablishes a prima facie case, and it is evi ment plaintiff may maintain his action for damages in the way of compensation. [3] The Legislature never contemplated that the county would enter into a solemn compact and then deliberately violate it, and therefore made no provision for a case of this character. It is sui generis; but the county has the use and occupation of the right of way over plaintiff's land, and will not be heard to say that through its breach of faith it has placed the plaintiff in a position where he is remediless. The Constitution guarantees to him full compensation for the property taken, and the language of this court quoted from the former opinion above is sufficiently explicit to indicate that the remedy he is pursuing is available. theory that plaintiff's cause of action is barred by the provisions of section 2945 and 6450a; but, as neither section is applicable, the ruling was erroneous. [5] According to plaintiff's theory, the road petition when signed by him and his writing specifying the terms and conditions upon which he would grant the right of way are to be treated as one instrument, and, so far as he is concerned, as constituting the offer on his part, which, when accepted by the county, completed the agreement. If the testimony is true, the theory is correct, and, granting the petition with these conditions annexed, amounted to an acceptance of the conditions. It is elementary that one party cannot accept an offer in different terms from those made, and thereby complete a contract. The county either accepted plaintiff's offer or it did not, and its acts in opening the road over his land and fencing the right of way are very persuasive evidence of the correctness of plaintiff's position. If his testimony as to the terms and conditions upon which he granted the right of way is true, he is entitled to prevail in this action. The cause should have been submitted to the jury for a determination of the merits. was void as to the interest of the defendant not If at foreclosure sale purchaser gets all he was getting, doctrine of caveat emptor prethat was offered, though less than he thought vents his complaining thereof; but, if the judgment creditor procures false recital of due service of summons on the debtor, caveat emptor from the creditor for any consequent damage. does not prevent the purchaser from recouping 6. MORTGAGES 537-FORECLOSURE-RIGHTS OF PURCHASER-SUBROGATION. Though purchaser at foreclosure sale, by consulting judgment roll, could have learned of false recital in judgment that summons was duly served on the debtor, his failure to do so was not such culpable negligence as to bar relief on the ground of mistake. 7. ELECTION OF REMEDIES 14 FORECLOSURE OF MORTGAGE-RIGHTS OF PURCHASER -SUBROGATION. Where a judgment creditor at foreclosure sale procured false recitals of due service of summons on a debtor, so that the purchaser's title was not good, and the purchaser sued the judgment creditor for the resulting damage, The judgment is reversed, and the cause he could not thereafter proceed in the original remanded for a new trial. Reversed and remanded. suit, though he could enforce his remedy against the judgment creditor. Appeal from District Court, Broadwater BRANTLY, C. J., and SANNER, J., concur. County; John A. Matthews, Judge. Action by the State Bank of Townsend against Gavin W. Hamilton and others and (54 Mont. 319) MCCARTHY v. STATE BANK OF TOWN- T. J. McCarthy, and by T. J. McCarthy SEND et al. MORTGAGE-REMEDY OF PURCHASER. Where the creditor on foreclosure sale procured false recital that summons was duly served on debtors, on discovering which the purchaser sought to rescind, he was not confined to his remedy of subrogation, which was in fact no remedy. 3. MORTGAGES 537-FORECLOSURE-RIGHTS OF PURCHASER-SUBROGATION. against the State Bank of Townsend and others. From the decrees rendered in each case McCarthy appeals. The appeals were consolidated. Order in the first cause affirmed, and judgment in the second cause reversed in part and remanded with directions. Walsh, Nolan & Scallon, of Helena, for appellant. Purcell & Horsky, of Helena, Frank A. Roberts, of Missoula, and E. H. Goodman, of Townsend, for respondents. SANNER, J. These appeals (consolidated Nos. 3841 and 3846) seek to present, upon the same facts but in different proceedings, the ultimate question what, if any, relief the appellant should have. The postulated facts are: Gavin W. Hamilton, Mollie G. Hamilton, and Robert J. GleaTownsend of certain real property in which son were mortgagors to the State Bank of Where the creditor on foreclosure sale pro- Gleason owned an undivided one-half intercured false recital that summons was duly est and the Hamiltons a like estate. On served on debtors, on discovering which the April 16, 1913, the obligations secured by purchaser sought to rescind, the purchaser could proceed by an independent action for the mortgages were past due, and the Townreimbursement against the judgment creditor. send bank brought suit to foreclose, naming 4. SUBROGATION 16 FORECLOSURE OF the Hamiltons, Gleason, and the First NaMORTGAGE-RIGHTS OF PURCHASER-SUBRO- tional Bank of Missoula (the last upon alleGATION "IRREGULARITY IN PROCEEDINGS CONCERNING SALE." Where creditor on foreclosure sale procured false recital of due service, so that the sale gations of adverse claim) as defendants. Summons was issued, and the return shows service upon the Missoula bank on April 22; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes against the Hamiltons because the same is void. These facts were set forth first in an amended complaint by McCarthy in an action against all the parties to the foreclosure, praying, among other things, that the judg ment as against the Hamiltons and all the proceedings following the judgment in the foreclosure suit, including the sale, be annulled, that the Townsend bank repay to him the moneys paid by him for the property, together with interest and taxes, and that he have such other and further relief as may be just. The two banks and Gleason each filed a general demurrer, and these demurrers were sustained. McCarthy declined to plead further and suffered judgment of dismissal. The appeal in No. 3841 is from that judgment. that the other defendants could not be found, and that copies had been sent them by registered mail, registry return receipts from Tucker, Utah, being attached, each dated April 25, 1913, and signed by R. M. Hamilton as "addressee's agent." Thereafter the Townsend bank caused an alias summons to issue, the return whereof shows personal service upon Gleason on May 21. None of the defendants appeared, and on September 6, 1913, the default of all of them was entered and indorsed upon the complaint. Ten days later a judgment was entered decreeing the foreclosure of the mortgages, and directing the sale of the mortgaged property, which judgment contained the recital that it had been made to appear to the satisfaction of the court "that the summons in said action, together with a copy of the complaint therein, has been duly served upon said de- The other appeal (No. 3846) is from an orfendants and each of them, and that all of der, entered after demurrer sustained, dissaid defendants have been duly and regu- missing a petition by McCarthy in the origlarly summoned to appear and answer." Pur-inal foreclosure suit. This petition shows suant to such decree and an order of sale the same averments as the amended comissued thereunder, the sheriff, after due no- plaint in No. 3841, and alleges as the reatice, put up the property at public auction son for not making earlier application to the and sold it to T. J. McCarthy for $13,475- district court that McCarthy had been ada sum sufficient to meet the face of the judg-vised he could maintain an independent acment, with attorney's fees, costs, and accru- tion, which he had endeavored to do. The ing costs, and to leave a balance of $9.45 demurrer to it was by the Townsend bank, in the hands of the sheriff-of all of which and assigned among its grounds another acdue return was made. A certificate of sale tion pending seeking the same relief. was issued to McCarthy, and a year later, no redemption having occurred, a deed was delivered to him. At all times during this period McCarthy was ignorant of any defect in the proceedings or of anything that would affect the validity of the judgment and sale; he believed that both were valid, and that by means of the sale he would acquire, and by the deed had acquired, all the right, title, and interest of the Hamiltons as well as of Gleason in and to the property, otherwise he would not have bid for or purchased the same; and he was moved to such belief by the recitals of the judgment showing that the proceedings leading up to the same were regular and sufficient, which recitals had been inserted at the instance of the Townsend bank, with knowledge that the Hamiltons had not in fact been served with summons. Gleason's interest in the property was not worth more than one-half of what McCarthy had paid, and McCarthy has been unable to obtain possession, being forcibly prevented and evicted by Gavin W. Hamilton. Learning late in October, 1914, that the judgment and the sale thereunder were void as to the Hamiltons, McCarthy notified the Townsend bank of his rescission of the transaction, so far as rescission could be effected by him, offering to make any and all stipulations or instruments necessary to restore the parties to their status quo ante, which he still stands ready to do. On December 14, 1914, pursuant to a stipulation between the bank and the Hamiltons, an order of court was made The allegations, thus doubly made, clearly assert that, because of defects in the foreclosure suit, procured by the Townsend bank and unknown to him, the appellant McCarthy did not get what he had made his bid and paid his money for. He therefore should, upon the plainest principles of equity, be entitled to adequate relief somewhere, unless barred by his own fault or by some principle of law peculiar to this situation. But while this is so, it must also be obvious to any one that both of these appeals cannot be sustained; for if the appellant was privileged to proceed outside the original foreclosure suit, his action was pending when the petition in the foreclosure suit was filed. Some contention is made that the latter proceeding was not an action so as to warrant the ground of "another action pending," assigned in the demurrer to the petition. This, however, is a refinement which for present purposes may be regarded as negligible. The decisive question is whether the independent action was available; and this the Townsend bank denies upon the ground that McCarthy, as purchaser under the order of sale in the foreclosure suit, became subrogated to the rights of the bank, was thereby vested with an adequate remedy in that suit, and was obligated to pursue such remedy. [1] It undoubtedly is the rule that the purchaser at a judicial sale submits himself pro hac vice to the jurisdiction of the court (Boggs v. Fowler & Hargrave, 16 Cal. 560, 76 Am. Dec. 561; Andrews v. O'Mahoney, proper occasion, be subrogated to whatever |ed, there is no judgment to revive. By such rights and remedies exist in favor of the notice in the foreclosure suit as would be judgment creditor whose claim has been sat- given a party thereto? Hamilton is not a isfied by the proceeds of the sale (Freeman party, and no statutory provisions exist by on Void Judicial Sales, § 51 et seq.; note which he can be made a party in any such to Cowper v. Weaver's Adm'r, 69 L. R. A. fashion. Indeed, the only way apparent to 33, 42). That the subrogation thus availa- us by which jurisdiction of the Hamiltons ble, however, cannot in all cases be impera- interest can be obtained is through another tive or exclusive is patent from the nature suit to foreclose the mortgage as to it, supof the thing itself. Speaking generally, the ported by service; and, needless to say, this, doctrine is one of equity and benevolence; besides presenting its own difficulties, is not like contribution and other similar equitable to proceed in the original suit but by inderemedies, it came from the civil law; its pendent action. Clearly, then, subrogation basis is the doing of justice, its object the does not offer to McCarthy any certain remeprevention of injustice; it may be asserted dy, if any remedy at all in the original suit. or waived by the party entitled to its bene- [3] Moreover, the relief suggested as fit, but is not intended to be applied in all available through subrogation is altogether cases without regard to circumstances, as inadequate. No result short of enabling Mcwhere it would be of no advantage, where Carthy to get what he paid for, or reimjustice does not demand its application, bursement, could meet for a moment the dewhere it would prejudice the rights of inno- mands of equity. Under subrogation, reimcent parties, where its effect would be to bursement of course is out of the question; compel the acceptance of a doubtful or in- yet subrogation does not promise that Mcadequate remedy for one which might be Carthy will be enabled to get what he paid more certain and adequate. Sheldon on Sub- for, and it cannot be applied so as to acrogation, §§ 1, 4, 41; 37 Cyc. 363 et seq. complish that result without again involving Gleason. It follows, therefore, that if McCarthy is entitled to any adequate relief, it must be outside of subrogation and by independent action for reimbursement. That such an action does lie, without reference to statute, has been often decided (Henderson v. Overton, 2 Yerg. [Tenn.] 394, 24 Am. Dec. 492; Hoxter v. Poppleton, 9 Or. 481; Hall v. Dineen [Ky.] 83 S. W. 120; Schwinger v. Hickock, 53 N. Y. 282; 24 Cyc. 70, par. B; 17 Am. & Eng. Ency. Law, 1024; note to Cowper v. Weaver's Adm'r, 69 L. R. A. 56); when brought, it necessarily implies that subrogation has been waived, and it proceeds against the only party from whom reimbursement can come, viz. the judgment creditor who caused the sale and received the results thereof. [2] The bearing of these general propositions will be plain enough when it is recalled that a subrogee can never, as such, acquire any other or greater rights than those possessed by the party whom he displaces. Now, what are the rights of the Townsend bank to which the appellant, McCarthy, would thus succeed? They are, says the bank, "to perfect the proceedings in the foreclosure suit, and to foreclose all rights of the mortgagors therein in and to the mortgaged premises." But Gleason insists that this may not be done; that the judgment in the foreclosure suit being valid and final as to him, and all his interests in the property having been regularly sold to satisfy the same, the sale, so far at least, must stand; that, having paid his debt to the law, he is now an innocent party, and ought not to be [4] We by no means venture to assert that harassed or endangered by further proceed- declarations may not be found the effect of ings, begotten of circumstances for which which is to declare the compulsory and exhe is in nowise responsible; and this posi- clusive theory of subrogation in cases of tion seems to us impregnable. Yet, if it is, this kind; but we deem it noticeable that McCarthy's right under subrogation would many of the authorities cited to support that amount to nothing more than the privilege view contain a recognition to the contrary, to proceed with the foreclosure as against express or implied. See Ketchum v. Cripthe Hamiltons and to cause a public sale of pen, 37 Cal. 223; Boggs v. Fowler & Hartheir interest, winding up, not with what he grave, supra; Freeman on Executions, § had bought and paid for, to wit, title to the 352; Freeman on Void Judicial Sales, § 49; whole of the premises, but more likely as 3 Jones on Mortgages, §§ 1678-1681. The cotenant with a stranger. Again, how is Mc- matter has, however, been settled by the exCarthy to proceed "to foreclose all rights of plicit provisions of our statute (Rev. Codes, the mortgagors in and to the mortgaged § 6844). In terms this section is addressed premises"? How is he to bring the Hamil- to sales under execution, but the reasoning tons, who have never been served with sumInons, into court? By alias summons? It is too late. Rev. Codes, § 6516. By special summons under Code, § 7129 et seq? This case cannot be brought within these provisions. By petition and notice under section 6844? So far as the Hamiltons are concern170 P.-2 in Hamilton v. Hamilton, 51 Mont. 509, 154 Pac. 717, and other cases (Harlan v. Smith, 6 Cal. 173; Stout v. Macy, 22 Cal. 647) commands its application to sales under foreclosure. Here we have a sale void as to the Hamilton interest for want of valid authority, which presents a case of "irregularity |