No. 82-22
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
VERLIN F. WIPPERT and LORETTA L. WIPPERT,
Plaintiff and Appellant,
vs.
THE BLACKFEET TRIBE OF THE BLACKFEET
INDIAN RESERVATION, et al.,
Defendants and Respondents.
Appeal from: District Court of the Ninth Judicial District,
In and for the County of Glacier
Honorable R. D. McPhillips, Judge presiding.
Counsel of Record:
For Appellant:
Frisbee, Moore & Stufft, Cut Bank, Montana
Selden Frisbee argued, Cut Bank, Montana
For Respondents:
Werner, Nelson & Epstein, Cut Bank, Montana
James Nelson argued, Cut Bank, Montana
Cannon, Parish & Sheehy,
Ed Sheehy argued, Helena, Montana
Submitted: May 10, 1982
Decided: December 1, 1952
Filed:
ail; : 1982
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The Wipperts appeal a Glacier County District Court
judgment that the Blackfeet Tribe is entitled to enforce a
tribal court judgment as a matter of comity, and that the
Robertsons are entitled to recover certain cattle pasturage
fees from the Wipperts. The Wipperts contend that the ~ r i b e
cannot enforce its tribal court judgment by filing a notice
of that judgment as a lien in the District Court, and that
it cannot be tacitly implied that the ~ipperts,as assignors
of the right to recover the pasturage fees, guaranteed that
their assignee would pay those fees. We agree, and hold
that a tribal court judgment can only be enforced in Montana
courts by the institution of a special proceeding or action,
but that the Tribe is entitled to enforcement of its judgment
because the Wipperts themselves instituted an action to
determine the validity of the judgment. We remand, however,
for further consideration of whether the trial court
determined the correct amount remaining unsatisfied on the
judgment, and for amendment of the District Court judgment
to provide that the Wipperts are not liable to the Robertsons
for pasturage fees because the Wipperts assigned their right
to those fees to the Robertsons without guaranteeing that
the Wipperts would pay them.
Prior to July 1, 1976, the Wipperts, adult Blackfeet
tribal members, owned 2,427 acres in Glacier County, Montana,
known as the Stone Ranch. In 1974, the Blackfeet Tribe
loaned the Wipperts $46,773.28 due and payable to the Tribe
with 10 percent interest not later than November 1, 1975.
After the Wipperts defaulted on the loan, the Tribe obtained
a $46,773.28 judgment (plus interest) against them in the
Blackfeet Tribal Court on April 15, 1976. On April 21,
1976, the Tribe filed a notice of this judgment with the
Glacier County Clerk and Recorder and the Glacier County
District Court.
In June 1976, the Wipperts agreed to sell the Stone
Ranch to the Robertsons and agreed to provide the Robertsons
with a title insurance policy showing that the property was
free and clear of all liens and encumbrances. When the
title insurer discovered the Tribe's notice of judgment, the
Robertsons refused to accept title. In order to assure the
Robertsons that this notice of judgment would be cleared
from the title, it was agreed that $20,000 of the purchase
price would be kept in escrow with the title insurance
". . . to cover the amount still remaining and unpaid to the
Blackfeet Tribe [by] the Wipperts.. . . Upon release of the
judgment, the amount held in escrow, together with the
interest thereon, shall be paid to [the Wipperts].. . ." It
was also provided that if necessary to clear the judgment
from the title, the escrow funds could be used to pay the
judgment .
Before June 1976, the Wipperts had agreed that Mrs.
Wippert's brother, Larry Whitford, could put his cows to
pasture on the Stone Ranch from June through October 1976
for $3,000 per month. The Wipperts and Robertsons then made
a written, supplemental agreement that the Robertsons would
honor the buy-sell agreement, abide by the terms of the
pasturage agreement, and defer possession of the Stone Ranch
until October 1, 1976, in exchange for $12,000 of the
pasturage fee.
On July 1, 1976, the Wipperts conveyed the Stone Ranch
to the Robertsons by warranty deed. Almost a year later, on
June 29, 1977, the Wipperts filed a complain-tagainst the
Robertsons and the Tribe, requesting that the Tribe set
forth the nature of its claims to both the Stone Ranch and
the escrow funds and that the court declare that the Tribe
has no interest in or lien on either one. The Wipperts
specifically requested that the court adjudicate the rights
of all the parties in regard to the escrow funds.
The Wipperts also moved the court to strike the Tribe's
notice of judgment from the court records on the ground that
it was not a document entitled by law to be placed on the
records. The court granted this motion to strike, but a
copy of the notice of judgment remained on record as a -
lis
pendens in the Glacier County Clerk and Recorder's Office.
The Tribe counterclaimed for $17,171.55 (the amount
allegedly remaining unpaid on the tribal court judgment) and
asked that this amount be taken out of the escrow funds held
specifically for the purpose of satisfying that part of the
tribal court judgment which remained unpaid.
The Robertsons also counterclaimed and requested that
$10,500, the amount allegedly remaining unpaid under the
supplemental agreement relating to deferring possession and
obtaining $12,000 of the pasturage fees, be awarded them
from the escrow funds.
The trial court ruled in favor of both the Tribe and
the Robertsons on their counterclaims. The court held that
the tribal court judgment was entitled to full faith and
credit as a matter of comity, regardless of whether the
Tribe had a valid lien against the Wipperts' property. On
the Robertsons' counterclaim the trial court ruled that the
supplemental agreement was more than a mere assignment
of their right to the Robertsons to receive the pasturage
fees paid by Larry Whitford for the use of the pasturage
from June to October of 1976. Rather, the court held that
the Wipperts had breached the supplemental agreement by not
paying the $12,000 to the Robertsons.
The court held that because the Wipperts had asked it
to adjudicate the rights of all the parties and to quiet
title to the escrow funds, section 70-2-202, MCA (procedural
provisions applicable to quiet title actions), authorized
the use of the escrow funds to satisfy both the Tribe's and
the Robertsons' judgments. The Wipperts appeal.
The Wipperts first contend that the judgment in favor
of the Tribe on its counterclaim is not supported by any
evidence that the Tribe possessed a valid lien against the
Stone Ranch. Although we agree that the Tribe did not have
a lien against the property, we also hold that the Wipperts,
in their escrow agreement, agreed that the escrow funds
could be used to satisfy any remaining tribal court judgment.
The Wipperts, by this same agreement, also invited the Tribe
to institute special proceedings to establish the validity
of the tribal court judgment.
Tribal court judgments are treated with the same
deference shown decisions of foreign nations as a matter of
comity. Hilton v. Guyot (1895), 159 U.S. 113, 163-64, 16
S.Ct. 139, 143, 40 L.Ed. 95, 108; In re Marriage of Limpy
,
(1981), - Mont. - 636 P.2d 266, 38 St.Rep. 1885; State
ex rel. Stewart v. District Court (1980), - Mont . - 609
,
P.2d 290, 37 St.Rep. 635; Red Fox and Red Fox (0re.App.
1975), 542 P.2d 918; Wakefield v. Little Light (1975), 276
Md. 333, 347 A.2d 228; In Re Lynch's Estate (1962), 92
Ariz. 354, 377 P.2d 199; Begay v. Miller (1950), 70 Ariz.
380, 222 P.2d 624. However, there is no Montana law which
allows a t r i b e o r foreign nation t o place a l i e n a g a i n s t
p r o p e r t y s i t u a t e d i n Montana by f i l i n g a n o t i c e o f judgment
w i t h a Montana c o u r t . W do n o t even a l l o w t h i s f o r
e
judgments r e n d e r e d by o u r s i s t e r s t a t e s ; t h a t i s , t o e n f o r c e
a judgment r e n d e r e d i n a f o r e i g n c o u n t r y o r a n o t h e r s t a t e ,
-
an a c t i o n - r-a s p e c i a l p r o c e e d i n g must be i n s t i t u t e d i n t h e
o
D i s t r i c t C o u r t o f t h e c o u n t y where t h e judgment i s s o u g h t t o
be e n f o r c e d . See s e c t i o n 26-3-203, NCA. Therefore, t h e
D i s t r i c t C o u r t p r o p e r l y o r d e r e d t h e T r i b e ' s n o t i c e of
judgment be s t r i c k e n from t h e c o u r t ' s r e c o r d s , and it was
correct i n declaring t h a t it did not c o n s t i t u t e a l i e n
a g a i n s t t h e Wipperts' property.
Once a p a r t y f i l e s a n a c t i o n o r a s p e c i a l p r o c e e d i n g t o
e n f o r c e a t r i b a l o r f o r e i g n judgment a g a i n s t a p e r s o n ,
s e c t i o n 26-3-205(2), MCA a u t h o r i z e s , c o u r t s of t h i s s t a t e
t o presume t h a t t h e t r i b a l o r f o r e i g n judgment ". . . i s
e v i d e n c e of a r i g h t a s between t h e p a r t i e s . . . and can
o n l y be r e p e l l e d by e v i d e n c e o f a want of j u r i s d i c t i o n , want
of n o t i c e t o t h e p a r t y , c o l l u s i o n , f r a u d , o r c l e a r m i s t a k e
of law o r f a c t . "
But h e r e t h e T r i b e f a i l e d t o f i l e an a c t i o n o r s p e c i a l
p r o c e e d i n g t o e n f o r c e i t s judgment. R a t h e r , t h e Wipperts
t h e m s e l v e s f i l e d t h a t a c t i o n f o r t h e T r i b e when t h e y f i l e d
t h e i r complaint r e q u e s t i n g t h a t t h e Tribe set f o r t h t h e
n a t u r e o f i t s c l a i m s and t h a t t h e c o u r t d e c i d e t h e r i g h t s o f
a l l the parties. These r e q u e s t s l a i d t h e f o u n d a t i o n f o r t h e
c o u r t ' s i n q u i r y i n t o t h e v a l i d i t y of t h e t r i b a l c o u r t judgment.
Although t h e W i p p e r t s a l l e g e d i n t h e i r p l e a d i n g s t h a t t h e
t r i b a l c o u r t judgment w a s o b t a i n e d by f r a u d , t h e y o f f e r e d no
proof of f r a u d a t any t i m e .
Nonetheless we must remand for a determination of the
proper amount of the tribal court judgment. The Wipperts
have vaguely alleged in their briefs that the trial court
may have made a factual mistake in determining the unsatisfied
amount of the tribal court judgment. The Wipperts appear to
argue that the tribal court judgment was partially satisfied
because the Tribe confiscated certain lands and cattle which
had been pledged as collateral for the loan. In addition,
in determining the amount of the unsatisfied judgment, the
trial court merely asked counsel for the tribe to submit the
figure to the court, and the court simply adopted the figure
submitted by the Tribe. The trial court made no independent
determination of the correctness of the amount. Under these
circumstances we can indulge in no presumption that the
District Court judgment is correct. In all fairness, we
must remand for a hearing to determine the proper amount of
the judgment.
We also hold that the trial court was correct in allowing
the Tribe to satisfy the unpaid portion of its judgment from
the escrow funds. The Wipperts' written escrow agreement
specifically provided that ". . . the sum of $20,000.00
. . . will be held in an interest bearing escrow account ...
to cover the amount still remaining and unpaid to the 3lackfeet
Tribe [by] the Wipperts.. . . Upon release of the judgment,
the amount held in escrow . . . shall be paid to . . . [the
Wipperts]. If necessary in order to clear the judgment
. . . the escrow funds [may be used] to pay off the judgment
and obtain a release of said judgment . . ."
As to the Robertsons' counterclaim asking that the
escrow money be applied to pay them under the terms of the
supplemental agreement, the Wipperts correctly claim that
the Robertsons have no right to the proceeds of the escrow
fund because the Nippert-Robertson supplemental agreement
clearly provided that the Robertsons were to receive the
pasturage fee from Larry Whitford and not from the Wipperts.
We agree that the supplemental agreement was an assignment
of the Wippert rights to the pasturage fees to the Robertsons.
That agreement states:
"It is understood that you, the Buyer, will
fulfill and carry out completely the terms
of this summer pasturage agreement commencing
with July 1, 1976, and that - - - be
you will
entitled to payment -- Whitford of
from Larry
the remainins $12,000 . ..
" (Emphasis added.)
This is clearly an assignment which contains no language
creating an indebtedness between the Wipperts and the
Robertsons. Contrary to the trial court's holding that the
Wipperts should have clearly indicated their intentions to
assign by using customary words of assignment, the law does
not require that any special language be used to constitute
a written assignment. Any language, however informal or
poorly expressed, is sufficient if it shows an intent to
transfer a right. See 6A C.J.S. Assignments § 43(b);
Bergin v. Van Der Steen (Cal. 1951), 236 P.2d 613; Morris v.
Leach (Ore. 1917), 162 P. 253; Title Ins. & Trust Co. v.
Williamson (Cal.App. 1912), 123 P. 245; Porter v. Title
Guaranty & Surety Co. (Idaho 1912), 121 P. 548; ~ e v i n sv.
Stark (Ore. 1910), 110 P. 980; Galbreath v. Wallrich (Colo.
1909), 102 P. 1085. And an assignment may be limited by
conditions contained therein. Northwest Oil & Refining Co.
v. Honolulu Oil Corp. (1961), 195 F.Supp. 281.
We hold that the language stating that ". . . you will
be entitled to payment from Larry Whitford . . ." was
sufficient to show a present intent to transfer. Xt is
an established rule of contract law that the assignor does
not guarantee that the obligor will pay, and that the assiqnor
i s n o t l i a b l e t o t h e a s s i g n e e f o r b r e a c h e s of t h e a s s i g n m e n t
by t h e d e b t o r . R e s t a t e m e n t of t h e Law of C o n t r a c t 5 175; 6A
C.J.S. Assignments § 90; P a t r o n s S t a t e Bank & T r u s t Co. v .
S h a p i r o (Kans. 1 9 7 4 ) , 528 P.2d 1198; F i r s t N a t i o n a l Bank of
Topeka v. U n i t e d Telephone A s s ' n . (Kan. 1 9 6 0 ) , 3 5 3 P.2d 963;
Robinson v . S t . Maries Lumber Co. ( I d a h o 1 9 2 1 ) , 204 P . 671;
Galbreath, supra. T h e r e f o r e , we w i l l n o t imply t h a t t h e
R o b e r t s o n s may r e c o v e r t h e unpaid p a s t u r a g e f e e from t h e
W i p p e r t s ; any r e c o v e r y must be s o u g h t from L a r r y W h i t f o r d .
W e a f f i r m i n p a r t and r e v e r s e i n p a r t , and remand f o r
f u r t h e r proceedings c o n s i s t e n t with t h i s opinion.
W Concur:
e
/chief Justice
dge, S i t t i n g f
u s t i c e John C .
Chief Justice Frank I. Haswell concurring in part and
dissenting in part:
I dissent from that portion of the foregoing opinion
which determines that a remand to the District Court is
necessary for a redetermination of the correctness of the
figure representing the unsatisfied portion of the tribal
court judgment.
Particularly, I take issue with the following language
in the majority opinion:
". . . In addition, in determining the
amount of the unsatisfied judgment, the
trial court merely asked counsel for the
tribe to submit the figure to the court,
and the court simply adopted the figure
submitted by the Tribe. The trial court
made no independent determination of the
correctness of the amount. Under these
circumstances we can indulge in no
presumption that the District Court
judgment is correct. In all fairness, we
must remand for a hearing to determine
the proper amount of judgment."
It is well-settled law in Montana that District Court
T o cc.ke.5
judgmei~ts are presumed to be correct. +kx&es V. Baker
(1980) Mont . -, 611 P.2d 609, 37 St.Rep. 948; Rock
Springs Corporation v. Pierre (1980), - Mon t . ,
- 615
P.2d 206, 37 St.Rep. 1378. The majority have assumed that
because the District Court asked the tribe's counsel to
compute the amount owing on the judgment and submit that
figure to the court, the District Court did not verify the
figures so submitted prior to signing the judgment. I find
nothing in the record to support this assumption and,
therefore, dissent from the majority's action in remanding
this case for that purpose.
I concur in the remainder of tne majority opinion.
Chief ~ u sice
t \