Angus v. Mariner

• Decision Date: 29 June 1929
• Docket Number: 6461.
• Citation: 278 P. 996,85 Mont. 365
• Parties: ANGUS v. MARINER et al.
• Court: Montana Supreme Court

278 P. 996

85 Mont. 365

ANGUS v. MARINER et al.

No. 6461.

Supreme Court of Montana

June 29, 1929

Appeal from District Court, Park County; Henry G. Rodgers, Judge.

Action by Charles Angus against Mary Mariner and others. From an adverse judgment, plaintiff appeals. Affirmed.

Frank Arnold, of Livingston, and Johnston, Coleman & Johnston, of Billings, for appellant.

Gibson & Smith, of Livingston, for respondents.

CALLAWAY C.J.

The only question presented on this appeal is whether plaintiff's mortgage is entitled to precedence over the mortgage of the defendant bank. The material facts are as follows:

In 1916 Merrill Henry was the owner of 440 acres of land in Park county which he agreed to convey to one Lyons upon the payment of $10,000; a deed conveying the land pursuant to the contract was placed in escrow. Lyons agreed to convey the land to Sherrod, and Sherrod agreed to convey it to Joseph H Mariner. In each instance deeds were made out and placed in escrow; all being in the National Park Bank at Livingston. In the meantime Henry assigned to his mother, Julia E. Henry his right to receive a part of the purchase price, to wit $7,500 and interest thereon, due under the Lyons contract.

In December, 1922, Mariner determined to complete the purchase of the land. In order to do so he required over $8,000. To make up that sum of money he found it necessary to negotiate the two loans which brought about this lawsuit. Prior to December 18, 1922, he applied to the Vermont Loan & Trust Company, having an office at Spokane, Wash, for a loan of $5,000, offering the Henry land as security. The application was approved, and a promissory note for the amount and mortgage securing the same were prepared at the Spokane office of the company and sent to Mr. Hildreth, the company's Livingston agent, for execution. Note and mortgage were signed by Mr. Mariner and Mary Mariner, his wife, in the presence of Hildreth; but as Hildreth was not a notary public, he took the mortgage to C. W. Hill, an abstractor, the understanding being that the mortgagors would call at Hill's office and acknowledge the execution of the mortgage, and that Hill would record the instrument and complete an abstract of the title to the property. The note and mortgage were signed and left with Hill before Christmas 1922. Afterwards, Mr. and Mrs. Mariner acknowledged the execution of the mortgage before a notary public in the office of Mr. Hill. The date of the notary's certificate is January 26, 1923. The deeds from Merrill Henry and wife to Lyons, from Lyons and wife to Sherrod, and from Sherrod and wife to Mariner, were taken from escrow and placed of record with the mortgage from Mariner and wife to the Vermont Loan & Trust Company on January 26, 1923.

In the meantime Mr. Mariner negotiated a loan for $2,000 from the plaintiff. Mariner and wife signed a promissory note in plaintiff's favor for that amount and executed a mortgage securing the same, bearing date January 20, 1923. This mortgage was acknowledged January 22, 1923, and was placed of record the next day. The mortgage embraced the same property included in the mortgage to the Vermont Loan & Trust Company, with this statement: "The said premises are conveyed subject to a first mortgage heretofore made thereon, also subject to the terms and provisions of a certain contract to sell said premises to H. A. Espie and Nora Espie, dated September 19, 1921." (The Mariners had contracted to sell the premises to the Espies.) The mortgage to plaintiff also included two tracts of land in Malheur county, Or., aggregating 336.21 acres, and this mortgage was recorded in Malheur county on February 3, 1923.

At the time of the execution of the mortgage to plaintiff, there was no other mortgage in existence affecting the land here involved, except that to the Vermont Loan & Trust Company.

Afterwards, the Vermont Loan & Trust Company sold its note and mortgage to the defendant bank.

Mariner died October 20, 1925. Before his death he conveyed all his real property to his wife.

In September, 1926, the plaintiff brought this suit to foreclose his mortgage and to have it declared superior to the mortgage of the defendant bank. In its answer the bank pleaded that plaintiff, when he took his mortgage, had actual knowledge of the existence of its mortgage, which it prayed the court to determine superior to plaintiff's mortgage, and to enter an appropriate decree of foreclosure. After trial the court found the issues for the bank and entered a decree in which it ordered a sale of the Park county land with appropriate directions as to the disposition of the proceeds. From this judgment, the plaintiff appealed.

Counsel for plaintiff argue with much ingenuity that there was no mortgage upon the land involved when plaintiff's mortgage was executed. They say that plaintiff's mortgage did not state that it was subject to a first mortgage about to be made, or a mortgage being negotiated, or a mortgage that had been signed, but a mortgage made. They say "a mortgage made means a mortgage fully and completely made, not partially made." They insist that it was not complete as to Mrs. Mariner, and cite section 5828, R. C. 1921, which provides: "No act, deed, or conveyance, executed or performed by the husband, without the assent of his wife, evidenced by her acknowledgment thereof, in the manner required by law to pass the estates of married women, * * * shall prejudice the rights of the wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto."

There is no doubt that a mortgage is a conveyance within the meaning of the Recording Acts. (Rev. Codes 1921, §§ 6934-6938) Hull v. Diehl, 21 Mont. 71, 52 P. 782; Mueller v. Renkes, 31 Mont. 100, 77 P. 512. But Mrs....