Banking Corp. of Montana v. Hein

• Decision Date: 12 April 1916
• Docket Number: 3780.
• Citation: 156 P. 1085,52 Mont. 238
• Parties: BANKING CORP. OF MONTANA v. HEIN ET AL.
• Court: Montana Supreme Court

156 P. 1085

52 Mont. 238

BANKING CORP. OF MONTANA v. HEIN ET AL.

No. 3780.

Supreme Court of Montana

April 12, 1916

Appeal from District Court, Teton County; J. B. Leslie, Judge.

Action by the Banking Corporation of Montana against Joseph B. Hein and others. Judgment for defendants on plaintiff's refusal to plead over, after overruling his demurrer to the answer, and plaintiff appeals. Reversed and remanded, with directions.

Day & Mapes, of Helena, for appellant.

Norris & Hurd, of Glasgow, for respondents.

HOLLOWAY J.

The complaint herein is in the ordinary form employed in an action to quiet title. It alleges that the plaintiff is the owner and entitled to the possession of the property, and that the defendants claim an adverse estate or interest therein. Warren W. Hurd, and others claiming under him, made answer setting forth that the plaintiff's claim of title is based upon a deed executed by the defendant Joseph E. Hein conveying the property to the plaintiff to secure a loan of $50,000; that while the instrument purports to be a trust deed, it is in fact a mortgage, and contains a provision that in case of default in the payment of principal or interest the trustee may proceed to sell to the highest bidder at public auction the property, rights, tenements, and hereditaments thereby conveyed, or such parts thereof as may be necessary to pay the indebtedness then outstanding; that the defendant Hein defaulted in the payment of his indebtedness, and plaintiff proceeded to sell the property under the above-described power, and became the purchaser at the sale and executed to itself a deed therefor, which is the only claim of title that it has to the property; that the defendant Hurd and those claiming under him acquired their title by conveyance from Hein after the execution of the trust deed, but before the sale, and that the right of redemption conferred by law upon the defendant Joseph E. Hein and his successors in interest had not expired at the time the suit was commenced; and that prior to the expiration of the period of redemption the plaintiff is not entitled to the ownership or possession of the premises. To that answer a general demurrer was interposed, but overruled, and plaintiff, refusing to plead further, suffered judgment to be entered against it and appealed.

If it became necessary to define the character of the writing in question, the difficulty would be all but insuperable. It has some of the characteristics of a deed creating an express trust to secure the payment and discharge of an indebtedness. It declares repeatedly that it creates a lien, and therefore it partakes of the nature of a mortgage with a power of sale. It confuses the idea of a deed of trust with the idea of a mortgage. It is a nondescript hybrid which fortunately need not be defined, further than to say that it is some sort of a conveyance for the security of an indebtedness, and contains a power of sale which was exercised in this instance.

Do the provisions of the Code governing the right of redemption (sections 6813-6847) apply to a sale under a power of sale contained in a mortgage or deed of trust? In Hamilton v Hamilton, 51 Mont. 509, 154 P. 717, we reviewed at length the history of our statutory right of redemption, and reached the conclusion that the terms of section 6836 include a decree foreclosing a mortgage. In Levy v. Burkle, 2 Cal. Unrep. 778, 14 P. 564, it was held, and we think correctly,...