Angus v. Mariner

Citation85 Mont. 365
Decision Date29 June 1929
Docket NumberNo. 6461.,6461.
PartiesANGUS v. MARINER et al.
CourtMontana Supreme Court

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...

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