Shackleton v. Allen Chapel African M.E. Church

• Decision Date: 17 June 1901
• Citation: 65 P. 428,25 Mont. 421
• Parties: SHACKLETON v. ALLEN CHAPEL AFRICAN M. E. CHURCH et al.
• Court: Montana Supreme Court

65 P. 428

25 Mont. 421

SHACKLETON v. ALLEN CHAPEL AFRICAN M. E. CHURCH et al.

Supreme Court of Montana

June 17, 1901

Appeal from district court, Silver Bow county; John Lindsay, Judge.

Action to foreclose a mortgage by J. W. Shackleton against the Allen Chapel African Methodist Episcopal Church, S. V. Kemper, and another. From a judgment in favor of defendants Kemper plaintiff appeals. Affirmed.

Robert Coombe, for appellant.

Robt. McBride, for respondents.

PIGOTT J.

On the 6th day of July, 1892, the Allen Chapel African Methodist Episcopal Church, a corporation created under the laws of Montana, executed to Simeon V. Kemper its mortgage of land to secure the payment of its promissory note of that day for $3,500. On the 15th day of August, 1892, the mortgage was recorded in the office of the county clerk and recorder of Silver Bow county, Mont., in which county the land mortgaged in situate. On the 1st day of October, 1892, a mortgage purporting to be "between the trustees of the Allen Chapel A. M. E. Church, of Butte City, Montana, party of the first part, of Butte City, Montana, and J. W. Shackleton and F. S. Leck, of same place, party of the second part," was made, by which "the said parties of the first part for and in consideration of the sum of two hundred and twenty-eight dollars *** to them in hand paid by the said parties of the second part, *** have granted, bargained sold, and conveyed *** unto the said parties of the second part, and to their heirs and assigns, forever," the land which had been theretofore mortgaged to Kemper. The instrument was declared to be a mortgage to secure the payment of a certain promissory note "executed by the said first parties to the second parties, which said note is in words and figures as follows, to wit: "$228.00. October the first, 1892. Six months after date we promise to pay to the order of J. W. Shackleton and F. S. Leck two hundred and twenty-eight dollars, at one per cent. interest from date per month, value received. Silas Fagan, Chairman of Trustees of Allen Chapel A. M. E. Church. Andrew Henson Secretary." The attesting clause and subscriptions thereto are as follows: "In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written. Silas Fagan, Chairman of Trustees of Allen Chapel A. M. E. Church. [L. S.] Andrew Henson, Secretary. [L. S.]" This mortgage was recorded in the office of the county clerk and recorder of Silverbow county on the 6th day of October, 1893. Leck afterwards assigned his interest as mortgagee to the plaintiff, Shackleton. On July 30, 1895, Kemper brought an action against the corporation to foreclose his mortgage. Shackleton was not made a party. A decree of foreclosure was entered on the 4th day of November, 1895, and the property was sold by the sheriff to Kemper. No redemption having been made within six months after the sale, the sheriff, on the 6th day of May, 1896, executed a conveyance of the property to Kemper. Thereafter, and on the 2d day of July, 1896, the plaintiff, Shackleton, brought this action to foreclose the mortgage of October 1, 1892, making Kemper and his wife parties, and asserting that he has the right to redeem the property for the reason that at the time the action by Kemper was commenced the plaintiff, Shackleton, had a mortgage of record upon the property, executed by the Allen Chapel African Methodist Episcopal Church. The trial resulted in a judgment in favor of the defendants Kemper, but, so far as the transcript shows, no determination was made with respect to the rights of the plaintiff as against the corporation defendant. From the judgment in favor of the defendants Kemper, and from an order overruling his motion for a new trial, the plaintiff appeals.

There is but one question presented upon this appeal, or, rather the determination of one question in favor of the defendants Kemper will render unnecessary the decision of any other. The question is, was the record of the mortgage of October 1, 1892, constructive notice to Kemper that the Allen Chapel African Methodist Episcopal Church, a corporation, had mortgaged to Shackleton the land theretofore mortgaged to Kemper? If it was, the plaintiff has the right to redeem; if it was not, then, as against the defendants Kemper, the plaintiff is without any right whatever. It is not pretended that Kemper had actual notice of the mortgage to Shackleton. The plaintiff bases his alleged right of redemption upon the constructive notice which he contends was imputed to Kemper by the record of the mortgage to Shackleton and Leck. It is provided in section 1290 of the Code of Civil Procedure, which is substantially section 358, div....