State ex rel. Harnden v. Crawford

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This proceeding in mamdarrms was instituted by Emery D. Hamden to compel the sheriff of Chouteau county to issue to him a deed for certain real property sold under a decree of foreclosure and purchased by Harnden. It is alleged in the [1] application that, after the expiration of one year from the date of sale, relator made demand upon the sheriff for a' deed, but the demand was refused; that the property had not been redeemed; and that relator is the owner and holder of the certificate of sale. The sheriff attempted to defend upon the ground that one Ora Lester, the former wife of the mortgagor of the premises, had within the year after sale tendered the amount necessary to effect a redemption; that, at the time the mortgage was executed, Ora Lester was the wife of the mortgagor and joined with him in executing the notes, the payment of which was secured by the mortgage. The trial court sustained a demurrer to this answer and rendered judgment that the peremptory writ issue. From that judgment this appeal is prosecuted. There is presented for determination the question: Has a divorced woman such an interest as entitles her to redeem lands which belonged to her former husband and which were sold under mortgage foreclosure, by virtue of the fact that she'was the mortgagor’s wife at the time the mortgage was executed and joined him in executing it and the note secured by it, and was a party defendant in the foreclosure suit? The inquiry is answered in the negative by the decision of this court in Marcellus v. Wright, 51 Mont. 559, 154 Pac. 714, and upon the authority of that case the judgment herein is affirmed. Affirmed,. Associate Justices Hurly, Matthews and Cooper concur. Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.