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eBook details

• Title: Murray Et Al. v. Creese Et Al.
• Author : Supreme Court of Montana
• Release Date : January 07, 1927
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

Real Estate ? Mortgages ? Foreclosure ? Deeds ? Assumption of Mortgage Debt ? Parties ? Summons ? Failure to Serve Mortgagors ? Duty of Trial Court. Appeal ? Cross-assignments of Error. 1. It is only where alleged errors assigned by respondent under his cross-assignments of error compensate appellant for errors committed against him that the supreme court is required to affirm the judgment, under section 9751, Revised Codes 1921. Deeds ? Assumption of Mortgage Debt ? Foreclosure ? Parties. 2. Where a deed to mortgaged real property provides that the purchaser assumes and agrees to pay the mortgage debt, he becomes liable for the debt to the mortgagee or his assigns, who, under the doctrine of equitable subrogation, may enforce the liability in an action against the purchaser to foreclose the mortgage, or may proceed against the mortgagor (grantor), or both jointly. Pleading ? Prayer No Part of Complaint. 3. The prayer is no part of the complaint or cause of action stated; it cannot enlarge the relief sought by the allegations made, and in so far as the prayer is broader than the allegations it must be disregarded. Mortgage Foreclosure ? Assumption by Vendee of Mortgage Debt ? Complaint. 4. In a foreclosure action against the purchaser of mortgaged real property, on the theory that he assumed the mortgage debt, plaintiff must show that defendant acquired title by deed from the mortgagor containing the assumption of the debt and the existence and ownership of the debt, without which there would be no lien to foreclose and no liability upon the purchaser to pay any amount. Same ? Necessary Parties. 5. In an action of the nature of the above (par. 4) the holders of interests or liens acquired subsequent to the inception of plaintiffs rights are necessary parties defendant. - Page 454 Mortgages ? Assumption of Payment by Purchaser ? Duty of Mortgagee and Purchaser to Protect Interests of Mortgagor. 6. On sale of mortgaged property with the condition that the vendee assume the mortgage debt, the land itself remains the primary fund for the payment of the mortgage debt assumed, and both the mortgagee and the vendee are bound to protect the mortgagor by seeing that the security is exhausted in satisfaction of the debt or a part of it. Same ? Foreclosure ? Mortgagors Indispensable Parties, When. 7. Where a foreclosure action is commenced against the mortgagors and other parties are joined as defendants solely for the purpose of foreclosing interests acquired subsequent to the mortgage, title remaining in the mortgagors, the latter are indispensable parties and the question of priority cannot be tried without service of summons upon them, the real parties in interest on the main issue. Same ? Failure of Service of Summons on Real Parties in Interest (Mortgagors) ? Dismissal of Action on Merits Error. 8. Where during trial of a mortgage foreclosure suit it appeared that the real parties in interest had not been served with summons, the action of the court in dismissing the suit upon the merits as to their co-defendants who asserted some interest in the property acquired subsequent to the date of the mortgage was error, the proper practice requiring vacation of the setting with a continuance to plaintiff on terms, the error committed in setting the case having been invited by him.

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