Citizens' Nat. Bank of Laurel v. Western Loan & Building Co.

• Decision Date: 30 June 1922
• Docket Number: 4829.
• Citation: 208 P. 893,64 Mont. 40
• Parties: CITIZENS' NAT. BANK OF LAUREL v. WESTERN LOAN & BUILDING CO.
• Court: Montana Supreme Court

208 P. 893

64 Mont. 40

CITIZENS' NAT. BANK OF LAUREL v. WESTERN LOAN & BUILDING CO.

No. 4829.

Supreme Court of Montana

June 30, 1922

Appeal from District Court, Big Horn County; Charles A. Taylor Judge.

Action by the Citizens' National Bank of Laurel, Mont., against the Western Loan & Building Company. Judgment for plaintiff and defendant appeals. Remanded, with directions to modify judgment.

M. J Lamb, of Billings, for appellant.

Nichols & Wilson, of Billings, for respondent.

HOLLOWAY J.

In 1916 the Western Loan & Building Company held a mortgage upon lot 4, block 2, First addition to the town of Hardin, in Big Horn county, and in an action to foreclose the mortgage such proceedings were had that a decree was duly given and made and thereunder the sheriff sold the property on June 4, 1917 and issued his certificate of sale to the loan company, the purchaser. O. M. Solso held a second mortgage upon the same property and in foreclosure proceedings secured a decree under which the sheriff sold the property to Solso on November 17, 1917, and issued to him a certificate of sale. On February 18, 1918, Solso sold, assigned, and transferred his certificate to the Citizens' National Bank of Laurel. On April 30, 1918, the bank gave notice of redemption from the first sale and tendered to the sheriff the full amount due. On May 4, 1918, the bank made demand in writing upon the loan company for a verified statement of the amount of rents and profits received by it from June 4, 1917, and the loan company having failed for more than a month to furnish the statement, this action for an accounting was instituted.

After the pleadings were settled, the parties submitted the controversy upon an agreed statement of facts which embraces the foregoing facts and, in addition thereto, the following: After the loan company received its certificate of sale from the sheriff, and on July 21, 1917, it entered into a contract with Mrs. A. Becker by the terms of which it agreed to sell lot 4 to her (provided there was not any redemption) for $1,000, payable $100 in cash and the balance in monthly installments. The contract provided further that the legal title and right of possession should remain in the loan company until the full purchase price should be paid; that time should be deemed to be of the essence of the contract, and upon failure of Mrs. Becker to make any payment as provided, the loan company might declare the contract forfeited and retain all payments made as liquidated damages. It was provided further that if there should be a redemption, the loan company would refund to Mrs. Becker "all sums theretofore paid * * * upon the purchase price in excess of interest at the rate of 12 per cent. per annum." It was provided further that Mrs. Becker should have possession of the property on July 23, 1917, and it is agreed that she took possession on that day "and has continuously since been in possession thereof and has received the rents and profits therefrom." A copy of the contract, the decree of foreclosure in the Solso case, the sheriff's certificate of sale issued to Solso, the written demand made by the bank upon the loan company, and certain letters written by the loan company to Mrs. Becker, were attached to and made a part of the agreed statement. Upon this record the trial court found for plaintiff, and from the judgment entered upon the findings defendant appealed.

This action is brought under section 6843, Revised Codes 1907 (section 9448, Rev. Codes 1921), which provides:

"The purchaser, from the time of the sale until a redemption, and a redemptioner, from the time of his redemption until another redemption, is entitled to receive from the tenant in possession, the rents of the property sold, or the value of the use and occupation thereof. But when any rents or profits have been received by the judgment creditor or purchaser, or his or their assigns, from the property thus sold preceding such redemption, the amount of such rents and profits shall be a credit upon the redemption money to be paid; and if the redemptioner or judgment debtor, before the expiration of the time allowed for such redemption, demands in writing of such purchaser or creditor, or his assigns, a written and verified statement of the amount of such rents and profits thus received, the period for redemption is extended five days after such sworn statement is given by such purchaser or his assigns to such redemptioner or debtor. If such purchaser or his assigns shall, for a period of one month from and after such demand, fail or refuse to give such statement, such redemptioner or debtor may bring an action in any court of competent jurisdiction, to compel an accounting and disclosure of such rents and profits, and until fifteen days from and after the final determination of such action, the right of redemption is extended to such redemptioner or debtor."

1. Under section 9441, Revised Codes 1921, the purchaser at an execution or foreclosure sale is substituted to and acquires the right, title, and interest of the judgment debtor in the property sold (Hamilton v. Hamilton, 51 Mont. 509 154 P. 717; Banking Corporation v. Hein, 52 Mont. 238, 156 P. 1085; Power Mercantile Co. v. Moore Mercantile Co., 55 Mont. 401, 177 P. 406), leaving in the judgment debtor only the bare right to redeem ( McQueeney...