Hinderager v. MacGinniss , 63 Mont. 187 ( 1922 )

MR. CHIEF COMMISSIONER STARK

prepared the opinion of the court.

This action was brought by plaintiff to recover the possession of a tract of land located in Cascade county, which he claimed to own, and the possession of which he alleged the defendant unlawfully withheld from him. Plaintiff obtained judgment in the lower court, from which, as well as from the order of the court denying his motion for a new trial, the defendant appealed.

The case was tried in the lower court immediately following the case of MacGinniss Realty Co. v. Hinderager, from which an appeal was also taken, and which was this day decided by the court, being case No. 4688 (ante, p. 172, 206 Pac. 436). It was stipulated by counsel for the respective parties, at the trial, that the testimony introduced in the case of MacGinniss Realty Co. v. Hinderager should be introduced as the testimony in the instant ease in view of the fact that the same land was involved and the same contention with reference to Hinderager’s title thereto was made in both cases.

It having been determined by the decision in ease No. 4688 that Hinderager’s title to the land involved was not vulnerable to the assault made upon it therein, it follows that as to matters therein determined he should prevail on this appeal.

The defendant in this case seeks to make an additional point [1, 2] against the Hinderager title, claiming that the judicial sale through which he claims was of no effect because the sheriff sold the land en masse instead of offering it in separate parcels, and that the price paid at the sale was grossly inadequate.

Without undertaking to decide what the effect of this contention would have been if seasonably made, we observe that the record in the case shows that the sheriff’s sale was held on April 27, 1916, and the deed issued thereunder on May 3, 1917; that the grantee under the sheriff’s deed conveyed the land to the plaintiff on May 3, 1917; and that, so far as we are able to ascertain, this matter was first suggested in the defendant’s second amended answer which was filed in this ease on April 12, 1919, or fifteen days less than three years after the sale was made.

By standing by for that period of time without making any move to assert his rights under the proposed irregularity, we think the defendant was guilty of such laches as precludes hirn from asserting them in this action.

In Freeman on Executions, third edition, section 296, it is said: “What is to be regarded as a seasonable application for relief from a sale en masse has not been very frequently discussed; and no doubt, when it shall have been so discussed, the conclusions reached in the different states will not be entirely uniform. When the property sold is subject to redemption within a stated time, it has been held, and we think justly, that the motion to vacate must, in ordinary cases, be interposed before the expiration of such time.” (See, also, Burton v. Kipp, 30 Mont. 275, 76 Pac. 563; Thomas v. Thomas, 44 Mont. 102, Ann. Cas. 1913B, 616, 119 Pac. 283.)

On the authority of MacGinniss Realty Co. v. Hinderager, supra, we recommend that the judgment and order appealed from be affirmed.

Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Affirmed.