Isom v. Larson
| Decision Date | 02 March 1927 |
| Docket Number | 6033. |
| Citation | 255 P. 1049,78 Mont. 395 |
| Parties | ISOM v. LARSON. |
| Court | Montana Supreme Court |
Rehearing Denied March 31, 1927.
Appeal from District Court, Park County; H. G. Rodgers, Judge.
Action by Francis M. Isom against Swan Larson. From a judgment for defendant, plaintiff appeals. Affirmed.
Burnett & Vetteson, of Livingston, for appellant.
Gibson & Smith, of Livingston, for respondent.
Appeal from a judgment in favor of defendant. Plaintiff commenced action to quiet title to certain residence property in Livingston. By answer the defendant alleged that he was the holder of a lien superior to plaintiff's title, and prayed that his lien be foreclosed and the property sold in satisfaction thereof. A reply was filed, and, issue being joined, the cause was submitted to the trial court on an agreed statement of facts.
The material facts, appearing from the statement and exhibits attached thereto, are as follows: On January 22, 1916, J. A Carson and Mrs. J. A. Carson were husband and wife and were "the owners of" three lots in Livingston, each having a frontage of 25 feet, with a dwelling house erected thereon in such manner that the property was indivisible which property at all times mentioned had a value of $4,200. On the above date the Carsons jointly executed and delivered to Josephine E. Koehler a warranty deed to the premises as security for a loan then made to them. This deed was duly recorded. On May 18, 1920, Josephine E. Koehler deeded the premises to the Carsons jointly, but this deed was evidently placed in escrow to abide the payment of the amount due the grantor from the Carsons, though the agreed statement is silent on the subject.
In December, 1920, Larson commenced an action against the Carsons and secured the issuance and levy of a writ of attachment against the premises, and thereafter, on November 30, 1921, J. A. Carson filed a declaration of homestead thereon. Thereafter Larson recovered judgment in his attachment suit against Mrs. J. A. Carson only, which judgment was duly docketed in Park county on March 6, 1922. On March 9, 1922, there was due Koehler from the Carsons $2,800; this amount was then loaned to them by Isom, and was used in satisfaction of the debt. Isom had no interest in the premises or in the debt, and his loan was purely voluntary. Thereupon the Carsons jointly deeded the premises to Isom as security for the repayment of the loan, and the three entered into a written contract for the reconveyance thereof on payment of the loan.
On March 13, 1922, the deed from Koehler to the Carsons and the deed from the Carsons to the plaintiff were delivered to the county clerk for record, and were indorsed as "received for record," the first at 1:40 p. m., and the second at 1:45 p. m.
The Carsons failed to repay the Isom loan when due, and Isom thereupon instituted foreclosure proceedings, resulting in a decree of foreclosure and order of sale of date February 20 1924, and, as the purchaser at the foreclosure sale, plaintiff received a sheriff's deed to the premises on March 26, 1925, which was duly recorded. On July 9, 1925, defendant caused a writ of execution to be issued and levied upon all of the right, title, and interest which Mrs. J. A. Carson had in the premises on December 18, 1920, or which she thereafter acquired. This action resulted. The court adopted the agreed statement as its findings, and rendered judgment for the defendant in accordance with his prayer for relief.
The position taken by counsel for plaintiff on appeal from the judgment is that the record title controls; that, as the premises stood of record in the name of Josephine E. Koehler at all times up to the time plaintiff acquired such title, with the exception of five minutes on March 13, 1922, which was but a transitory seizin insufficient to confer a lien, the Carsons had no attachable interest in the premises, and further that "Mrs. Carson never had any title, legal, equitable, or of record, to which the attachment of the appellant could or did affix itself," and that defendant was in no position to reach any "secret interest" which Mrs. Carson may have had in the premises. The following legal principles will effectually dispose of these contentions:
1. As it was agreed that J. A. Carson and Mrs. J. A. Carson were "the owners" of the premises at the time they executed the Koehler deed, they were tenants in common, each owning an undivided one-half interest therein. Sections 6682, 6683, Rev. Codes 1921; Rodda v. Best, 68 Mont. 205, 217 P. 669.
2. The deed from these owners to Koehler, while absolute on its face, was in fact a mortgage subject to defeasance on payment of the mortgage debt. Section 8249, Rev. Codes 1921; Elling v. Fine, 53 Mont. 481, 164 P. 891, Ann. Cas. 1918C, 752; Nolan v. Benninghoff, 64 Mont. 68, 208 P. 905.
3. The equity of redemption, as distinguished from the right of redemption, existing from the time of the execution of a mortgage up to the time of sale on foreclosure, is a substantive property right which may be sold or seized on attachment or execution (Banking Corporation of Montana v. Hein, 52 Mont. 238, 156 P. 1085), and, where a deed absolute on its face, is known to be subject to a defeasance agreement, the property right of the grantor therein is subject to attachment and to levy and sale on execution in the same manner as it is when a mortgage is given as security for the mortgage...
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