Elston v. Hix

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This action was instituted to foreclose a mortgage upon real estate situated in Fergus county. After the defendants answered, a stipulation was entered into between the parties under which the answer was withdrawn and plaintiff was authorized to make the necessary proof, secure a judgment, and “have a sale of said property.” The default of the defendants was entered and proof submitted. The decree which followed is in the usual form, except that it directs that the property “be sold together, as the same cannot be sold in separate parcels without material injury to the plaintiff in said action and to the said mortgaged property, as the same has at all times heretofore been used together and that every part thereof is necessary for the best use and enjoyment of [298] said mortgaged property.” Thereafter the defendants moved the court to modify the judgment by eliminating the portion quoted above, but that motion was overruled, and defendants appealed from the judgment and from the order refusing to modify it. • The single question presented is this: Was the court au thorized to direct the sale of the mortgaged property en masse? Section 9434, Eevised Codes of 1921, which governs the sale of property subject to execution, provides that “when the sale is of real property, consisting of several known lots or parcels, they must be sold separately.” Counsel for defendants contends that this statute is equally applicable to a sale under mortgage foreclosure, but if the contention be granted it would avail nothing. The evidence heard by the district court is not before us, and there were not any affidavits presented in support of the motion; hence it cannot be said that these mortgaged premises consist of separate known lots or parcels; on the contrary, the description in the mortgage indicates that the property consists of one parcel. The fact that it is comprised of substantially thirteen and one-half forty-acre legal subdivisions does not indicate that it is divided into separate known lots or parcels. (Pierce v. Reed, 3 Neb. (Unof.) 874, 93 N. W. 154; Connick v. Hill, 127 Cal. 162, 59 Pac. 832.) These several forty-acre tracts are all contiguous and apparently constitute one farm and they were mortgaged as one tract. In Thomas v. Thomas, 44 Mont. 102, Ann. Cas. 1913B, 616, 119 Pac. 283, this court said: “Where property is described in a mortgage as a single tract, it may properly be so sold in proceedings to foreclose, unless the court directs a different method of procedure.” But counsel is in error in assuming that the provisions of section 9434 are applicable to a sale of real property under mortgage foreclosure. Prior to 1917 our statute dealing with foreclosures did not provide expressly for redemption, and in the absence of any such provision this court held, in harmony with the great weight of authority, that the statutory [299] right of redemption from sale under execution attaches to a sale under mortgage foreclosure. (Hamilton v. Hamilton, 51 Mont. 509, 154 Pac. 717.) But whereas section 9434 directs that in a sale under execution of real property consisting of several known lots or parcels they shall be sold separately, section 9467, which controls sales under foreclosure, provides that “the court may, by its judgment, direct a sale of the encumbered property (or so much thereof as may be necessary),” and in Thomas v. Thomas, above, we held that the provisions of section 9467 are exclusive and that the sale under mortgage foreclosure is to be directed by the court in the judgment. Counsel for defendants insists that under like statutory provisions the California court has held that a sale under mortgage foreclosure is governed by the rule applicable to sales under execution, but this is true only in a qualified sense. In Heyman v. Babcock. 30 Cal. 367, the court said: “No express provision is found in the Practice Act prescribing the mode of making sale of the mortgaged premises under a decree of foreclosure. In the absence of any provision prescribing the mode, we think the court might, under its power to direct the sale, direct how it should be made.” In Hopkins v. Wiard, 72 Cal. 259, 13 Pac. 687, the contention was made, as in this instance, that the trial court exceeded its jurisdiction in ordering the mortgaged property sold in one parcel, but the contention was overruled, and the court said: “It is within the jurisdiction of the [trial] court to direct by its judgment that the property should be sold in one or several parcels.” In Ontario L. & I. Co. v. Bedford, 90 Cal. 181, 27 Pac. 39, the court held that a decree in foreclosure is to be enforced by execution and that whenever the decree is silent as to the manner of sale the statute applicable to sales under execution must govern. In Marston v. White, 91 Cal. 37, 27 Pac. 588, the same court said that the section governing sales under execution “is applicable to sales under a decree of foreclosure, when the decree is silent as to the manner or order in which [300] the separate parcels shall be sold.” It thus appears that the California court has not departed from the rule announced in Heyman v. Babcock and Hopkins v. Wiard, and has not gone further than to hold that while the decree may direct the manner in which the mortgaged property shall be sold, yet if it does not do so the statute governing sales under execution furnishes the rule of procedure. Apparently this last pronouncement has its foundation in the declaration by the court that a decree in foreclosure may be enforced only by execution, a conclusion directly opposed to the decision of this court in Thomas v. Thomas, above. It is the general rule approved by the California court, and sanctioned by this court in Thomas v. Thomas, that in the absence of a controlling statute it is within the discretion of the trial court to direct the manner in which a sale under mortgage foreclosure shall be conducted. (19 R. C. L. 574, 576; Kane v. Jonasen, 55 Neb. 757, 76 N. W. 441.) There is not any contention made here that there was an abuse of discretion in this instance. Defendants did not advise the court that the property could be divided and sold in separate parcels advantageously, or that they could or desired to redeem any part of the property, or that they would be prejudiced by a sale en masse. Finally it is contended that as this judgment was by default, plaintiff was not entitled to any relief beyond that demanded in his complaint, and since he did not ask specifically for a sale of the property in one body, the court was without authority to direct that the sale be made in that manner. ■Section 9316, Revised Codes of 1921, provides that “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.” The prayer of the complaint in this instance is that the mortgaged premises be sold according to law, and the relief awarded did not exceed that demand. The order that the property be sold in one parcel was directed to the officer who was to make the sale, and it was competent for the court to [301] give such direction without a foundation having been laid therefor in the pleadings. (Cord v. Southwell, 15 Wis. 231; Bank of Ukiah v. Reed, 131 Cal. 597, 63 Pac. 921.) The trial court did not err in refusing to make the modification requested, and the judgment and order are affirmed. Affirmed. Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.