No. 86-235
TN THE SUPREME COURT OF THE STATE OF MONTANA
1986
MARII4YN JESMAIN ,
Plaintiff and Respondent,
-vs-
MARGARET MILLS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Emmons & Coder; H. William Coder, Great Falls,
Montana
For Respondent :
Alexander & Raucus; Floyd Corder, Great Falls,
Montana
Submitted on Briefs: Sept. 4, 1986
Decided: November 24, 1986
Filed: rdpV 2 6 1986
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
This is an action for a declaratory judgment brought by
Marilyn Jesmain. The District Court of the Eighth Judici~l
District, Cascade County entered summary judgment in her
favor. Margaret Mills appeals. We affirm.
The appellant raises four issues on appeal:
1. Did the District Court err in granting plaintiff's
motion for summary judgment?
2. Did the District Court err in concluding that
appellant was not a judgment debtor or creditor as defined by
law.
3. Did the District Court err in concluding that there
were no material issues of fact which required resolution?
4. Did the District Court err in its conclusion that
appellant's redemption was invalid?
In 1978, Marilyn Jesmain and Margaret Mills acquired
title to real property in Cascade County. Jesmain paid
$29,000 down and Mills promised she would make the monthly
payment to eliminate the remaining $20,000 balance. Both
women executed a promissory note and mortgage to Albert
Lawson for the remaining $20,000. In 1981, Jesmain and Mills
executed another promissory note and trust indenture covering
the same property to Safeco Title Insurance Company as
trustees for Aetna Finance Company for $6,259.46.
Mills failed to make payments on the original note and
in November, 1983, Jesmain filed a complaint against Mills
asking that sole right, title and interest in the real
property he vested in Jesmain or alternatively, she moved for
partition of the property. Lawson was named as sole
lienholder on the property.
The Court entered default judgment against Mills in
March, 1984. The court decreed:
1. That [Jesmain] is the owner in fee simple of
those certain lands and premises [at issue] . ..
free and clear from all claims, rights, titles,
estates, interest, liens or encumbrances of the
Defendant Margaret Mills in that the Defendant
Margaret Mills does not have any right, title,
estate or interest in, or lien or encumbrance upon
the said upon described property lands and premises
or any thereof and that her claims to the same, or
any part thereof, are null, void, and of no effect,
and that the fee simple title of the Plaintiff is
subject to a mortgage executed by Plaintiff and
Margaret Mills which is a first lien on the real
property, which mortgage is recorded at Reel 127,
Document 554 of the records filed in the office of
the Clerk and Recorder of Cascade County, Montana,
which mortgage was in the original principal amount
of $20,000.00.
2. That Defendant Margaret Mills is forever barred
and restrained from asserting any claim whatsoever
in or to the above-described premises.
No appeal was taken from that judgment. In a
counterclaim in the same proceeding, Albert Lawson sought to
foreclose his mortgage on the real estate. A foreclosure
judgment was entered in his favor in June, 1984. The
property was ordered to be sold at sheriff's sale and the
deficiency, if any existed, to be entered against Jesmain and
Mills personally. The property was sold at sheriff's sale in
August, 1984. It sold for more than the outstanding mortgage
so no deficiency was entered. The real property was redeemed
by Mills on July 30, 1985. The next day, July 31, 1985,
Jesmain tendered the redemption amount to the sheriff and was
informed that Mills had already redeemed.
Jesmain filed the instant action for declaratory
judgment seeking to set aside Mills' redemption of the
property. The District Court granted summary judgment in
Jesmain's favor. The Court concluded that when one joint.
tenant's interest in real property has been cancelled prior
to a foreclosure sale that tenant no longer has the right to
redeem.
Although appellant raises four issues on appeal, those
issues can be summarized as, did the District Court err in
granting summary judgment for Jesmain?
We begin with the standard of review for summa-ry
judgments. It is well settled that summary judgment is
proper if there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law.
Clarks Fork National Bank v. Papp (Mont. 1985), 698 P.2d 851,
42 St.Rep. 577; Cereck v. Albertson's, Inc. (1981), 195 Mont.
409, 637 P.2d 509. There are no issues of material fact in
this case, so we turn to the issue of which party is entitled
to judgment as a matter of law.
The issue is who has the right to redeem from sheriff's
sale? Section 25-13-801, MCA provides:
(1) Property sold subject to redemption, as
provided by 25-13-710, or any part sold separately
may be redeemed in the manner hereinafter provided
by the following persons or their successors in
interest:
(a) the judgment debtor, the judgment debtor's
spouse, or his successor in interest in the whole
or any part of the property and, if the judgment
debtor or successor be a corporation, a stockholder
thereof;
(b) a creditor having a lien by judgment,
mortgage, or attachment on the property sold or on
some share or part thereof subsequent to that on
which the property is sold. If a corporation be
such creditor, then any stockholder thereof may
redeem.
This Court has held that the term judgment debtor
"refers exclusively to the debtor whose land was subject to
forced sale.'' Marcellus v. Wright (1916), 51 Mont. 559, 563,
154 P. 714, 716. In the ca-se at hand, Mills' interest in the
property had been terminated prior to the foreclosure, hence
she was not a judgment debtor pursuant to S 25-13-801, MCA.
She was also not a redemptioner as provided by §
25-13-801(2), MCA because she was not a creditor who held a
lien on the property.
Appellant contends that because Mills' statutory right
of redemption was not pled or proved in the original
termination proceeding or in the foreclosure action, the
judgments are both void. In effect, appellant seeks to
collaterally attack and reopen both judgments. We will not
do that. Mills' right of redemption was terminated when her
right, title and interest in the property was terminated. It
did not exist at the time of the foreclosure action, nor does
it exist now. Mills is a stranger to title who has no right
of redemption.
Appellant's last contention centers around the Aetna
mortgage. That mortgage was satisfied in 1985, and a deed of
reconveyance was issued to Jesmain and Mills by Aetna..
Appellant contends that the deed of reconveyance creates an
after-acquired interest which entitles Mills to redeem. We
disagree. The deed of reconveyance merely conveyed Jesmain's
interest in the property back to her. The deed of
reconveyance could not create a new interest in the property
in Mills.
We affirm the judgment of the District Court in a l l
respects.
We Concur:
Chief Justice