571 P.2d 368 (Mont. 1977), 13679, Engebretson v. Putnam

Docket Nº:13679.
Citation:571 P.2d 368, 174 Mont. 409
Opinion Judge:[8] MR. JUSTICE HASWELL DELIVERED THE OPINION OF THE COURT.
Party Name:Geraldine T. ENGEBRETSON, Plaintiff and Respondent, v. Bryce C. PUTNAM and Betty J. Putnam, Defendants, Counter-claimants and Appellants.
Attorney:[7] Boone, Karlberg & Haddon, Sam E. Haddon (argued), Missoula, for defendants, counter-claimants and appellants. Skelton & Knight, Robert R. Skelton (argued), Missoula, for plaintiff and respondent.
Case Date:November 04, 1977
Court:Supreme Court of Montana
 
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Page 368

571 P.2d 368 (Mont. 1977)

174 Mont. 409

Geraldine T. ENGEBRETSON, Plaintiff and Respondent,

v.

Bryce C. PUTNAM and Betty J. Putnam, Defendants,

Counter-claimants and Appellants.

No. 13679.

Supreme Court of Montana.

November 4, 1977

Submitted Sept. 29, 1977.

Page 369

[174 Mont. 410] Boone, Karlberg & Haddon, Sam E. Haddon (argued), Missoula, for defendants, counter-claimants and appellants.

Skelton & Knight, Robert R. Skelton (argued), Missoula, for plaintiff and respondent.

HASWELL, Justice.

Defendants appeal from a summary judgment granted to plaintiff by the District Court, Missoula County, in her suit on a promissory note.

Plaintiff Geraldine T. Engebretson was the owner of certain real property located in Missoula County, Montana. On October 29, 1970, she listed this property for sale with Trail Realty owned by defendants Bryce C. and Bette J. Putnam. Defendants prepared a listing agreement for the property using a standard form listing contract which plaintiff signed.

Defendants later decided to purchase plaintiff's property for themselves. On January 18, 1971, defendant Bryce C. Putnam executed a promissory note in part payment, payable to Geraldine T. Engebretson for $3,000 at 8 percent interest due in one year.

[174 Mont. 411] Plaintiff signed a warranty deed whereby she did "grant, bargain, sell and convey" her property to the Putnams. By the same deed Engebretson covenanted that she would:

" * * * forever WARRANT and DEFEND all right, title and interest in and to the said premises and the quiet and peaceable possession thereof unto the (Putnams) * * * against all acts and deeds of (Engebretson) and all and every person and persons whomsoever lawfully claiming or to claim the same." (Bracketed material paraphrased.)

The warranty deed stated Engebretson's grant was subject to a first mortgage in favor of the Missoula First Federal Building & Loan Association, which mortgage the Putnams agreed to assume and pay according to its terms.

At the time Engebretson sold her property to the Putnams, it was subject to the liens of Special Improvement District No. 296 for engineering fees and Special Improvement District No. 304 for sewer. Prior to the execution of the warranty deed, plaintiff had paid all matured special improvement district installments, however $1,244 in unmatured installments remained to be paid. The listing agreement which defendants prepared for plaintiff indicated the property was subject to an annual special improvement district payment of $21.50 for sewer installation. The warranty deed made no provision for the assumption of or proration of the unmatured payments by either party. Defendants later paid the $1,244 to release the special improvement district liens from the property.

As compensation for paying these installments, Putnams claimed a setoff against the amount owing on the $3,000 promissory note Bryce Putnam signed. Consequently, when the note matured on January 18, 1972, Putnams did not make any payment toward the amount due. In May 1972, they offered to pay Engebretson an amount less than the $3,000 plus interest then due. She refused to accept the lesser amount.

On June 2, 1972, Engebretson filed a complaint against Bryce Putnam alleging Putnam executed the promissory note; that he...

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