페이지 이미지

the time suit was commenced. A holder of a so as to give him a road of easy access thereto, negotiable instrument may maintain an ac- could maintain action for damages in the way tion for its collection (section 5899, Rev. of compensation when the county failed to com

plete the road. Codes); but to state a cause of action in fa- 3. DEDICATION Cw53 – HighWAYS–PAYMENT vor of plaintiff, it was necessary to disclose FOR LAND-LIABILITY-ESTOPPEL. some right in it by virtue of which it main- Since Const. art. 3, 14, gu: ntees just tains the action and upon the faith of which compensation for property taken, the county

which accepted land for highway in considerdefendant, by paying the judgment, may be ation of building road to county seat could not, fully discharged of his obligation and reliev- after its breach of the contract by failure to ed of the annoyance of further litigation at complete the road, assert that the landowner

had no remedy. the hands of some one else who may here

4. COUNTIES 104 — HIGHWAYS — PAYMENT after appear in possession of the notes. The

FOR LAND-LIABILITY-ESTOPPEL, general rule is well stated in 8 Corpus Juris, Rev. Codes, g 2894, authorizing county to 885, 886, as follows:

purchase property, but requiring it first to be “Plaintiff must show title to the bill or note estimated and appraised, refers to outright purin suit or privity between himself and defend- chase of property for county purposes, but does ant, or that as the holder thereof, he has the not apply to acquisition of a right of way unlegal right to maintain the action and to recover

der the general highway law. thereon. . * In an action by the payee

5. DEDICATION Om 45 — HIGHWAYS-ACCEPTagainst the maker of the note it is sufficient to

ANCE OF LANDS-EVIDENCE-QUESTIONS FOR allege the execution and delivery of the note

JURY. to plaintiff."

Whether county accepted offer of owner of

land of right of way for highway on terms specNeither the answer of the defendant norified by him, held for the jury. the judgment of the court aids the complaint in this instance.

Appeal from District Court, Beaverhead Counsel for respondent are in error in as- County; W. A. Clark, Judge. suming that this court decided in Meadow- Action by Thomas Flynn against Beavercraft v. Walsh, 15 Mont. 544, 39 Pac. 914, head County. Judgment of nonsuit, and that an allegation of ownership of the note plaintiff appeals. Reversed and remanded. sued upon is surplusage. The question there Norris Hurd & Collins, of Dillon, for apdetermined was one of substantive law-pellant. Harlow Pease and Roy S. Stephennot one of pleading. The complaint in that son, both of Dillon, and Frank Woody, of action alleged that each of the notes had Butte, for respondent. been duly indorsed and delivered to plaintiff, and that plaintiff was then the owner

HOLLOWAY, J. Plaintiff appeals from a and holder thereof,

judgment rendered against him after the The judgment and order are reversed, and court had granted defendant's motion for a the cause is remanded for further proceed- nonsuit. ings.

The facts out of which this controversy Reversed and remanded.

arises are stated at length in Flynn v. Bea

verhead County, 49 Mont. 347, 141 Pac. 673. SANNER, J., concurs. BRANTLY, C. J., being absent, takes no part in the foregoing In that case we held that ejectment was not decision.

a remedy available to plaintiff under the cir

cumstances, but, concluding the opinion, we (54 Mont. 309)


"It is not meant by anything here said that (No. 3839.)

the plaintiff is wholly without remedy. He may

not thus be deprived of his land without full (Supreme Court of Montana. Dec. 28, 1917.) compensation for it. Upon the plainest princi1. COUNTIES Cm 200 — ACTIONS-LIMITATIONS ples of justice, the board of commissioners -"ACCOUNT''-"CLAIM.”

should ascertain the amount to which he is against the county for its failure to complete action for it as he at first attempted to do." The claim of the grantor of land for road, entitled and pay him. In the absence of favor

able action on its part, he may maintain his the road or pay him damages, was not an account or claim within Rev. Codes, $ 2945, requiring claims to be presented within one year,

Plaintiff then commenced this action to reand section 6450a, requiring actions on claims cover compensation for the land taken by against a county rejected by the county com the county. Among other defenses interposmissioners to be commenced within six months ed, the county pleaded the bar of certain of the rejection, in view of sections 1395, 1397, 1398, 1309, 1400, and 1406, which provide the statutes of limitations, viz. sections 2915 and exclusive means of acquiring land for highway, 6150a, Revised Codes. These sections proand make it a county duty to provide just com- vide : pensation. [Ed. Note. For other definitions, see Words the board unless the same is made out in sepa

"Sec. 2945. No account must be allowed by and Phrases, First and Second Series, Account; rate items, the nature of each item stated, and Claim.]

be verified by affidavit, showing that the ac2. DEDICATION Om55 — HIGHWAYS–PAYMENT count is just and wholly unpaid; and if it is FOR LAND-LIABILITY.

for official services for which no specified fees A landowner who granted right of way for are fixed by law, the time actually and necescounty highway in consideration of agreements sarily devoted to such service must be stated. to complete the highway to the county seat, I Every claim against the county must be pre

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors]


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

[2] It is plaintiff's contention that he did the county commissioners, must be commenced not consent to give the right of way for the within six months after the first rejection there- road in question, but that he demanded comof by such board."

pensation which he deemed adequate. He [1] It will be observed that these sections reduced his offer to writing and submitted have to do with claims or accounts against a it to the board with the petition bearing his county, the general nature or character of signature. The writing has been lost, but, which is indicated in section 2915. That the according to plaintiff's testimony, the consubject-matter of this litigation is not such sideration for his granting the right of way as to give rise to a claim within the meaning over his land was that the road be estabof that section is apparent.

lished 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 ment plaintiff may maintain his action for essential that the compensation to a non- damages in the way of compensation. consenting landowner be paid in money. The [3] The Legislature never contemplated consideration for the right of way over his that the county would enter into a solemn premises might consist of advantages to accompact and then deliberately violate it, and crue to him from the opening of the new therefore made no provision for a case of road over a particular route. Section 1399. this character. It is sui generis; but the

As already observed, these provisions were county has the use and occupation of the exclusive. They furnished adequate means, right of way over plaintiff's land, and will and the only means, by which the county not be heard to say that through its breach could procure a right of way for public road of faith it has placed the plaintiff in a posipurposes in proceedings taken under the gen- tion where he is remediless. The Constitueral highway statutes above. In contempla- tion guarantees to him full compensation tion of law, the nonconsenting landowner re- for the property taken, and the language of ceived compensation for his land prior to or this court quoted from the former opinion at the time he relinquished it to the county. above is sufficiently explicit to indicate that There could not arise any possible circum- the remedy he is pursuing is available. stances 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 sufficient The testimony introduced by plaintiff espetition was presented. The Constitution tablishes a prima facie case, and it is evi


theory that plaintiff's cause of action is bar- , was void as to the interest of the defendant not red by the provisions of section 2945 and served, there was an irregularity in the pro6450a; but, as neither section is applicable, Rev. Codes, $ 6844, providing that, if a pur

ceedings concerning the sale so as to invoke the ruling was erroneous.

chaser of property at sheriff's sale failed to [5] According to plaintiff's theory, the recover. possession in consequence of irreguroad petition when signed by him and his larity in the proceeding concerning the salc, writing specifying the terms and conditions inal judgment for the amount paid by him.

the court shall on his petition revive the origupon which he would grant the right of way 5. MORTGAGES 537-FORECLOSURE-RIGHTS are to be treated as one instrument, and, so OF PURCHASER-SUBROGATION. far as he is concerned, as constituting the If at foreclosure sale purchaser gets all offer on his part, which, when accepted by that was offered, though less than he thought

he was getting, doctrine of caveat emptor prethe county, completed the agreement. If the vents his complaining thereof; but, if the judgtestimony is true, the theory is correct, and, ment creditor procures false recital of due servgranting the petition with these conditions ice of summons on the debtor, caveat emptor annexed, amounted to an acceptance of the from the creditor for any consequent damage.

does not prevent the purchaser from recouping conditions. It is elementary that one party 6. MORTGAGES Cww537-FORECLOSURE-Rights cannot accept an offer in different terms OF PURCHASER-SUBROGATION. from those made, and thereby complete a con

Though purchaser at foreclosure sale, by tract. The county either accepted plaintiff's consulting judgment roll, could have learned of

false recital in judgment that summons offer or it did not, and its acts in opening duly served on the debtor, his failure to do so the road over his land and fencing the right was not such culpable negligence as to bar reof way are very persuasive evidence of the lief on the ground of mistake. correctness of plaintiff's position. If his tes- 7. ELECTION OF REMEDIES 14 FORECLO

SURE OF MORTGAGE-RIGHTS OF PURCHASER timony as to the terms and conditions upon

-SUBROGATION. which he granted the right of way is true, Where a judgment creditor at foreclosure he is entitled to prevail in this action. The sale procured false rccitals of due service of cause should have been submitted to the jury summons on a debtor, so that the purchaser's

title was not good, and the purchaser sued for a determination of the merits.

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.

suit, though he could enforce his remedy against Reversed and remanded.

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 (54 Mont. 319)

against Gavin W. Hamilton and others and MCCARTHY V. STATE BANK OF TOWN- T. J. McCarthy, and by T. J. McCarthy SEND ct al.

against the State Bank of Townsend and


From the decrees rendered in each TON et al.

case McCarthy appeals. The appeals were

consolidated. Order in the first cause af(Nos. 3841, 3846.)

firmed, and judgment in the second cause re(Supreme Court of Montana. Jan. 7, 1918.) versed in part and remanded with directions. 1. SUBROGATION

On 16

Walsh, Nolan & Scallon, of Helena, for apMORTGAGE-RIGHTS OF PURCHASER.

While a purchaser at judicial sale submits pellant. Purcell & Horsky, of Helena, Frank pro hac vice to the jurisdiction of the court, A. Roberts, of Missoula, and E. H. Goodman, and may be subrogated to all rights and reme- of Townsend, for respondents. dies of the judgment creditor, such subrogation is not an imperative or exclusive remedy, where its enforcement would be incquitable.

SANNER, J. These appeals (consolidated 2. SUBROGATION mw16 FORECLOSURE

Nos. 3841 and 3846) seek to present, upon the MortGAGE-REMEDY OF PURCHASER.



same facts.but in different proceedings, the Where the creditor on foreclosure sale pro- ultimate question what, if any, relief the apcured false recital that summons was duly served on debtors, on discovering which the pur

pellant should have. chaser sought to rescind, he was not confined to The postulated facts are: Gavin W. Hamilhis remedy of subrogation, which was in fact ton, Mollie G. Hamilton, and Robert J. Gleano remedy. 3. MORTGAGES Cw537—FORECLOSURE-RIGHTS Townsend of certain real property in which

son were mortgagors to the State Bank of OF PURCHASER-SUBROGATION.

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 the mortgages were past due, and the Towncould proceed by an independent action for reimbursement against the judgment creditor, send bank brought suit to foreclose, naming 4. SUBROGATION Om 16 FORECLOSURE or the Hamiltons, Gleason, and the First NaMORTGAGE-RIGHTS OF PURCHASER-SUBRO- tional Bank of Missoula (the last upon alle

"IRREGULARITY IN PROCEEDINGS gations of adverse claim) as defendants. CONCERNING SALE."

Where creditor on foreclosure sale procured Summons was issued, and the return shows false recital of due service, so that the sale service upon the Missoula bank on April 22;

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


that the other defendants could not be found, i against the Hamiltons because the same is and that copies had been sent them by regis- void. tered mail, registry return receipts from These facts were set forth first in an Tucker, Utah, being attached, each dated amended complaint by McCarthy in an action April 25, 1913, and signed by R. M. Hamil against all the parties to the foreclosure, ton as "addressee's agent.” Thereafter the praying, among other things, that the judgTownsend bank caused an alias summons to ment as against the Hamiltons and all the issue, the return whereof shows personal proceedings following the judgment in the service upon Gleason on May 21. None of foreclosure suit, including the 'sale, be anthe defendants appeared, and on September nulled, that the Townsend bank repay to him 6, 1913, the default of all of them was en- the moneys paid by him for the property, totered and indorsed upon the complaint. Ten gether with interest and taxes, and that he days later a judgment was entered decreeing have such other and further relief as may the foreclosure of the mortgages, and direct- be just. The two banks and Gleason each ing the sale of the mortgaged property, filed a general demurrer, and these demurwhich judgment contained the recital that rers were sustained. McCarthy declined to it had been made to appear to the satisfac- plead further and suffered judgment of distion of the court “that the summons in said missal. The appeal in No. 3841 is from that action, together with a copy of the complaint judgment. 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 orig. larly 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, The allegations, thus doubly made, clearno redemption having occurred, a deed was ly assert that, because of defects in the foredelivered to him. At all times during this closure suit, procured by the Townsend bank period McCarthy was ignorant of any defect and unknown to him, the appellant McCarthy in the proceedings or of anything that would did not get what he had made his bid and affect the validity of the judgment and sale; paid his money for. He therefore should, he believed that both were valid, and that upon the plainest principles of equity, be enby means of the sale he would acquire, and titled to adequate relief somewhere, unless by the deed had acquired, all the right, ti- barred by his own fault or by some principle tle, and interest of the Hamiltons as well as of law peculiar to this situation. But while of Gleason in and to the property, otherwise this is so, it must also be obvious to any he would not have bid for or purchased the one that both of these appeals cannot be same; and he was moved to such belief by sustained; for if the appellant was privithe recitals of the judgment showing that leged to proceed outside the original fore the proceedings leading up to the same were closure suit, his action was pending when regular and sufficient, which recitals had been the petition in the foreclosure suit was filed. inserted at the instance of the Townsend Some contention is made that the latter probank, with knowledge that the Hamiltons ceeding was not an action so as to warrant had not in fact been served with summons. the ground of "another action pending,” asGleason's interest in the property was not signed in the demurrer to the petition. This, worth more than one-half of what McCarthy however, is a refinement which for present had paid, and McCarthy has been unable to purposes may be regarded as negligible. The obtain possession, being forcibly prevented decisive question is whether the independent and evicted by Gavin W. Hamilton. Learn- action was available; and this the Townsend ing late in October, 1914, that the judgment bank denies upon the ground that McCarthy, and the sale thereunder were void as to the as purchaser under the order of sale in the Hamiltons, McCarthy notified the Townsend foreclosure suit, became subrogated to the bank of his rescission of the transaction, so rights of the bank, was thereby vested with far as rescission could be effected by him, an adequate remedy in that suit, and was offering to make any and all stipulations or obligated to pursue such remedy. instruments necessary to restore the parties [1] It undoubtedly is the rule that the to their status quo ante, which he still stands purchaser at a judicial sale submits himself ready to do. On December 14, 1914, pursu- pro hac vice to the jurisdiction of the court ant to a stipulation between the bank and (Boggs v. Fowler & Hargrave, 16 Cal. 560, the Hamiltons, an order of court was made 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 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 de where 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, 88 1, 4, 41; 37 Cyc. 363 et seq. complish that result without again involv

[2] The bearing of these general proposi. ing Gleason. It follows, therefore, that if tions will be plain enough when it is recalled McCarthy is entitled to any adequate relief, that a subrogee can never, as such, acquire it must be outside of subrogation and by any other or greater rights than those pos- independent action for reimbursement sessed by the party whom he displaces. That such an action does lie, without referNow, what are the rights of the Townsendence to statute, has been often decided (Henbank to which the appellant, McCarthy, derson v. Overton, 2 Yerg. [Tenn.) 394, 24 would thus succeed? They are, says the Am. Dec. 492; Hoxter v. Poppleton, 9 Or. bank, “to perfect the proceedings in the fore- 481; Hall v. Dineen (Ky.) 83 S. W. 120; closure suit, and to foreclose all rights of Schwinger y. Hickock, 53 N. Y. 282; 24 Cyc. the mortgagors therein in and to the mort- 70, par. B; 17 Am. & Eng. Ency. Law, 1024; gaged premises." But Gleason insists that note to Cowper v. Weaver's Adm'r, 69 L. R. this may not be done; that the judgment in A. 56); when brought, it necessarily implies the foreclosure suit being valid and final as that subrogation has been waived, and it to him, and all his interests in the property proceeds against the only party from whom having been regularly sold to satisfy the reimbursement can come, viz. the judgment same, the sale, so far at least, must stand; creditor who caused the sale and received that, having paid his debt to the law, he is the results thereof. now an innocent party, and ought not to be 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, $8 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 sum- in Hamilton v. Hamilton, 51 Mont. 509, 154 inons, into court? By alias summons? It Pac. 717, and other cases (Harlan v. Smith, is too late. Rev. Codes, $ 6516. By special 6 Cal. 173; Stout v. Macy, 22 Cal. 647) comsummons under Code, $ 7129 et seq? This mands its application to sales under forecase cannot be brought within these provi. closure. Here we have a sale void as to the sions. By petition and notice under section Hamilton interest for want of valid author6844? So far as the Hamiltons are concernity, which presents a case of "irregularity

170 P.-2

be there wet by no means venture to assert that

« 이전계속 »