Berkin v. Healy
Montana Supreme Court
Appeal from District Court, Fergus County; Boy E. Ayers, Judge. Action by T. A. Berkin and another against Tena De Witt Healy and others. Decree for plaintiffs, and defendants appeal. A mortgagor cannot have a mortgage canceled as a cloud upon his title on the sole ground that it is outlawed, nor can his successor in interest have such relief. Nothing less than payment of the debt will entitle either of them to have the record cleared.
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Appeal from District Court, Fergus County; Boy E. Ayers, Judge. Action by T. A. Berkin and another against Tena De Witt Healy and others. Decree for plaintiffs, and defendants appeal. A mortgagor cannot have a mortgage canceled as a cloud upon his title on the sole ground that it is outlawed, nor can his successor in interest have such relief. Nothing less than payment of the debt will entitle either of them to have the record cleared. (Tracy v. Wheeler, 15 N. D. 248, 6 L. R. A. (n. s.) 516, 107 N. W. 68; De Cazara v. Orena, 80 Cal. 132, 22 Pac. 74; Bums v. Hiatt, 149 Cal. 617, 117 Am. St.…
1Opinion of the CourtJustice Holloway
In the complaint in this action it is alleged that on November 6, 1885, David C. Miller executed and delivered to C. A. De Witt his promissory note and a mortgage upon 160 acres of land to secure the payment; that the mortgage was duly recorded and ever since has remained of record and uneanceled; that the indebtedness has never been paid in whole or in part; that the right to recover it is barred by statutes of limitation, the appropriate sections of which are cited; and that the lien of the mortgage has been extinguished. It is further alleged that the plaintiffs are the present owners of…
2Cases cited11 opinions
- Campbell v. HoltSupreme Court of the United States · 1885
- Frost v. WitterCalifornia Supreme Court · 1901
- Waltermire v. . WestoverNew York Court of Appeals · 1856
- First National Bank v. Bell Silver & Copper Mining Co.Montana Supreme Court · 1888
- Braithwaite v. HarveyMontana Supreme Court · 1894
6 more not listed; retrieve them via the Exa API.
3Cited by14 opinions
- Morrison v. Farmers & Traders' State BankMontana Supreme Court · 1924
- Humbird v. ArnetMontana Supreme Court · 1935
- Frisbee v. CoburnMontana Supreme Court · 1935
- Vitt v. RogersMontana Supreme Court · 1927
- Hastings v. WiseMontana Supreme Court · 1931
9 more not listed; retrieve them via the Exa API.