Skillen v. Harris

• Decision Date: 08 June 1929
• Docket Number: No. 6438.,6438.
• Parties: SKILLEN v. HARRIS et al.
• Court: Montana Supreme Court

85 Mont. 73

SKILLEN

v.HARRIS et al.

No. 6438.

Supreme Court of Montana.

May 15, 1929.

As Modified, on Denial of Rehearing, June 8, 1929.

On Petition for Rehearing.

Appeal from District Court, Phillips County; C. D. Barton, Judge.

Action to quiet title by William Skillen against Milton K. Harris and others, in which certain defendants filed cross-complaint, asking to have a mortgage foreclosed. From a judgment of foreclosure in favor of one of cross-complainants, plaintiff appeals. Reversed and remanded.

W. B. Sands, of Chinook, for appellant.

Cooper, Stephenson & Hoover and Robert O. Kerr, all of Great Falls, for respondent.

GALEN, J.

This action was instituted by the plaintiff, William Skillen, against Milton K. Harris, Milton K. Harris as executor of the estate of Hattie E. Harris, deceased, C. E. Campbell, E. Browne, Blaine county, a municipal corporation, and Grover Dowen, to quiet title to a tract of land located in Blaine county, and was transferred to Phillips county for trial. The defendants Milton K. Harris, Milton K. Harris as executor, and C. E. Campbell answered plaintiff's complaint, admitting plaintiff's claim of ownership to the property and of their adverse claims thereto, and by cross-complaint joined the additional parties named as defendants, and alleged right and claim to the property by reason of a first mortgage upon the land, which they asked to have foreclosed in the action. The plaintiff demurred generally to the cross-complaint, which was overruled. He then made reply thereto, denying the validity of the mortgage, and alleging that it had expired by limitation of the law. The separate answer of the other defendants appearing in the cause also admitted plaintiff's legal title to the land. George W. Roberts, assignee of E. Browne, by answer made claim to the land by reason of a second mortgage, which by cross-complaint he sought to have foreclosed, and the defendants Blaine county and Grover Dowen answered separately, alleging that they were the holders of tax liens upon the property. The cause appears to have been tried before the court without a jury, at the conclusion of which judgment of foreclosure of the first mortgage on the land was entered in favor of Milton K. Harris, one of the defendants and cross-complainants in the action. The appeal is from the judgment, and the record contains only the judgment roll.

The procedure in the action taken by Harris, cross-complainant, is authorized by our statute. Section 9151, R. C. 1921. Of the plaintiff's several assignments of error, the only question presented thereby necessary to be considered in disposition of the appeal is: Was the Harris mortgage, foreclosure of which was decreed, barred by the statute of limitations? The plaintiff contends the mortgage was barred, because the attempted renewal. pursuant to the provisions of section 8267 of the Revised Codes of 1921, is fatally defective for the reasons: (1) That the law does not authorize an agent to make an affidavit of renewal of such a mortgage; and (2) that the affidavit was not filed in the office of the county clerk where the mortgage is recorded.

Section 8267 requires that, in order to avoid the bar of the statute, as one of limitations, the mortgagee, his heirs, executors, administrators, representatives, or assigns, shall, within 60 days after the maturity of the entire debt or obligation secured thereby, file an affidavit of renewal as therein prescribed. According to the language of the statute, a duly recorded mortgage on real property ceases to be of binding force as against the persons mentioned and becomes unenforceable by the lapse of eight years from the maturity of the debt or obligation secured, unless the required affidavit of renewal is filed. Morrison v. Farmers' & Traders' State Bank, 70 Mont. 146, 225 P. 123. That section contemplates action to be taken by the mortgagee, or his representative, in order to keep alive the lien of the mortgage. With that procedure the mortgagor has nothing to do. He cannot prevent it,...