Coburn v. Coburn

• Decision Date: 01 April 1931
• Docket Number: 6736.
• Parties: COBURN v. COBURN et al.
• Court: Montana Supreme Court

298 P. 349

89 Mont. 386

COBURN v. COBURN et al.

No. 6736.

Supreme Court of Montana

April 1, 1931

Appeal from District Court, Glacier County; R. M. Hattersley, Judge.

Action by Marion Coburn against John W. Coburn and another. From adverse judgment, plaintiff appeals.

Affirmed.

Arnot & Doyle, of Conrad, for appellant.

John W Coburn, of Cut Bank, and Clift & Glover, of Great Falls, for respondents.

GALEN J.

This action was instituted to foreclose a real estate mortgage executed by the defendant as security for the payment of his promissory note for the sum of $500, given to the plaintiff July 27, 1923, of even date with the mortgage. The complaint is in the usual form. By way of answer the defendant John W Coburn admitted the execution of the note and mortgage, but attempts to defend affirmatively by reason of a judgment entered by the district court of Cascade county April 4 1924, upon the promissory note alone, said to estop the plaintiff in this action. The answer of the defendant Peter G. Reutten, a mortgage claimant of the real estate security alleges priority of his mortgage on the lands, and otherwise, by way of defense in the action, is of like import to the answer of the defendant John W. Coburn. The case was regularly brought on for trial before the court sitting without a jury, the defendant Reutten not appearing either in person or by counsel, after the conclusion of which the court made its findings of fact and conclusions of law in favor of the defendant John W. Coburn, upon which judgment was accordingly entered. The appeal is from the judgment.

As a matter of law the court concluded that by reason of the personal judgment rendered by the district court of Cascade county on the defendant Coburn's promissory note, the plaintiff is now foreclosed from recovery in this action. The only question presented for decision by the plaintiff's assignments of error is whether the court correctly applied the law.

1. Section 9467, Rev. Codes 1921, provides: "There is but one action for the recovery of debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter." In applying this statute this court has held, and we think correctly, that our statute was adopted from the state of California, and that with it we adopted the construction given it by that state. State Savings Bank v. Albertson, 39 Mont. 414, 102 P. 692. And the established rule in California under the terms of this statute is that "an action brought on a note alone where the note is secured by mortgage, is a waiver of the mortgage security where the plaintiff obtains a judgment which becomes final, and he cannot thereafter go into a court of equity and secure relief by way of foreclosure." 18 Cal. Jur. p. 248. "It is not difficult to discover the policy which dictated the enactment of this statute. The tendency of modern legislation is to prevent a multiplicity of suits, and no one doubts the wisdom of it. In order to give to this statute the force and effect which the legislature intended it should have, we must hold that by prosecuting an action upon the note secured by the mortgage to final judgment, the plaintiff has exhausted his remedy upon both the note and the security. To hold otherwise would be to hold that there may be two actions, where the statute declares there can be but one." Ould v. Stoddard, 54 Cal. 613. See also, Commercial Bank v. Kershner, 120 Cal. 495, 52 P. 848; Campan v. Molle, 124 Cal. 415, 57 P. 208; J. I. Case Threshing Mach. Co. v. Copren Bros., 45 Cal.App. 159, 187 P. 772; Brice v. Walker, 50 Cal.App. 49, 194 P. 721; Bacon v. Raybould, ...