O.M. Corwin Co. v. Brainard , 80 Mont. 318 ( 1927 )

Defendant has moved for a rehearing, the principal ground of which is that in Morrison v. Farmers Traders' State Bank, supra, in discussing the purpose and meaning of section 8267, Revised Codes 1921, this court said that Chapter 27 of the Laws of 1913 was not to be construed in pari materia with the Recording Acts, and that if by the enactment of that chapter the legislature intended — as it did — "to fix a definite point of time beyond which a recorded mortgage ceased to be an enforceable lien upon real property it is altogether immaterial whether the subsequent purchaser or encumbrancer becomes such without notice," while in the foregoing opinion we call attention to the fact that the subsequent mortgagee took its mortgage with full knowledge of the facts.

Defendant's earnest and able counsel urges us to explain, or to reconcile, what he terms a conflict in the two opinions. While doubting any necessity for that action we shall add a few words. We think counsel overlooks the wide distinction between the two cases, which are not inharmonious.

The decision in this case does not turn upon notice; that is only incidental. The question is whether a mortgagor and mortgagee may under section 8264 renew or extend a mortgage, the rights of others being unaffected thereby, or whether the only possible way of extending a mortgage is by the action of the mortgagee alone under section 8267.

Upon a state of facts such as was presented in the MorrisonCase, where under section 8267 the mortgagee alone can act, and then only after the maturity of the debt or obligation secured by the mortgage, and regardless of the mortgagor or anyone else, notice is wholly immaterial; the reasons which called this legislation into existence are set forth in the Morrison Case and are adverted to in the foregoing opinion. It is pointed out that section 8267 in effect is a statute of limitations. That statute has no reference whatever to a renewal or extension of an existing mortgage by joint act of the parties where the rights of third parties are not affected. In this situation, of course, the extension or renewal must be placed of record so that third parties may have notice, for the same reason that the original mortgage is placed of record.

The motion for rehearing is denied.

Rehearing denied.

ASSOCIATE JUSTICES MYERS, STARK, MATTHEWS and GALEN concur.