No. 91-395 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

C. JOHN MONTGOMERY and MARCELYN MONTGOMERY, 

Plaintiffs and Appellants, 

4 

-vsk'ov g " ERNEST F. GOETTLICH, FLORENCE L. GOETTLICH, 

and TRENT D. GOETTLICH, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jon A. Oldenburg, Attorney at Law, Lewistown, 

Montana 

For Respondent: 

John L. Pratt, Ask & Pratt, Roundup, Montana 

Filed: 

Submitted on Briefs: April 15, 1992 

Decided: November 9, 1992 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

plaintiffs appeal from the summary judgment of the District 

Court of the Tenth ~udicial ~istrict, Fergus County, which 

dismissed their claim for expenses incurred by them after 

foreclosure and prior to the statutory redemption of certain real 

estate. We reverse the District Court. 

The issues for our determination are: 

1. Whether a purchaser at a sheriff's sale is entitled to 

recover expenses incurred to maintain and prevent waste upon real 

property from a subsequent redemptioner. 

2. Whether a purchaser is entitled to recover rents from the 

subsequent redemptioner for storage of personal goods and the 

pasturing of cattle prior to redemption. 

In 1988, an action to foreclose the property in question was 

commenced. At that time, defendants were leasing the property from 

the owner. A sheriff's sale was conducted on February 24, 1989, 

and the plaintiffs were the successful purchasers. At that same 

time, the original owner quit-claimed his statutory right of 

redemption to the defendants. 

The plaintiffs took possession of the property immediately 

following the sale and discovered that defendant Trent Goettlich 

had left cattle and personal effects on the premises. This 

property remained on the premises until defendants redeemed the 

property on May 25, 1989. 

During the period when plaintiffs resided on the property, 

they performed a number of services, including dam repair, 
fertilization, and general maintenance. During that period, 

defendants refused to vacate the premises, and their herd of 

approximately 140 head of cattle continued to pasture on the 

property. 

Plaintiffs filedtheir complaint on November 22, 1989, seeking 

compensation for their services, pasturing of cattle, lost rental 

value, and interest. Defendants moved for summary judgment, 

contending that since plaintiffs were not statutorily entitled to 

possession of the property during the one year period of 

redemption, no action for loss of rents and profits, nor recovery 

for improvements was available to them. The District Court 

concluded that plaintiffs were precluded from recovering the value 

of improvements because they had full knowledge of defendants' 

redemptive rights. Also, since all rents and profits received by 

a purchaser are a credit against money paid to redeem the property 

under 25-13-822, MCA, plaintiffs could not claim any losses 

because no rents or profits were deducted from the redemption 

price. 

From this judgment, plaintiffs appeal. 

Section 25-13-821, MCA, states that a purchaser of land at 

execution sale is not entitled to the possession of that land 

against the execution debtor if the debtor resides on the property 

during the period of redemption. Plaintiffs correctly point out 

that defendants were not the execution debtors, and did not use the 

property for their home. Nonetheless, defendants continued in 

their possession of the land by the pasturing of cattle and storing 
personal property on the land. Plaintiffs were clearly entitled to 

rents and profits during that period. However, any rents or 

profits would have been a credit against the amount paid to redeem 

the property. The District Court was correct in its determination 

that plaintiffs could not claim lost rents and profits. This 

conclusion also pertains to the pasturing of cattle, even though 

defendants had no statutory right to continue to do so. Any rents 

plaintiffs might have received for grazing would have been credited 

to defendants' redemption price. Since no rents were credited 

against the redemption price, plaintiffs were not damaged by 

defendants' failure to pay them. 

We do, however, find merit in plaintiffs' argument of unjust 

enrichment. The theory of unjust enrichment requires that a person 

who has been unjustly enriched at the expense of another must make 

restitution to the other. Robertus v. Candee (1983) 205 Mont. 403, 670 

P.2d 540. Nothing in Montana's statutory redemption laws precludes 

a purchaser from receiving the fair value of services rendered or 

expenses reasonably incurred to maintain property prior to 

redemption. The measure of equitable restitution is either the 

quantum meruit value of a plaintiff's labor, or the value of the 

enhancement of a defendant's property. Restatement (Second) of 

Contracts 5 371 (1981): Williston, Contracts 5 1480 (1970). We 

hold that plaintiffs are entitled to recover expenses incurred to 

maintain and prevent waste upon real property under the theory of 
unjust enrichment, and that summary judgment on that issue was 

improper. 

Accordingly, we affirm the judgment of the District Court, 

dismissing Count I1 of plaintiffs' complaint, and we reverse the 

judgment of the District Court which dismissed Count I. This case 

is remanded for further proceedings consistent with this opinion. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: 

Chief Justice 
Chief Justice Turnage concurring in part and dissenting in part: 

I agree with the majority that a purchaser of land at execution sale is not entitled to claim lost rents and profits because 

those would be a credit against the amount paid to redeem the 

property pursuant to 55 25-13-802 and -822, MCA. However, I 

respectfully disagree with the majority's reversal of summary 

judgment and its remand of this case for determination of whether 

the Montgomerys are entitled to recover expenses incurred to 

maintain and prevent waste upon the property under a theory of 

unjust enrichment. 

Unjust enrichment is an equitable theory which has been 

recognized in Montana since at least 1922. See Butler v. Peters 

(l922), 62 Mont. 381, 205 P. 247. This Court has, in the past, 

recognized restrictions on application of the theory. 

In Butler, this Court held that unjust enrichment did not 

apply to entitle a corporation to recover against its director for 

incurring a debt on behalf of the corporation and failing to file 

a required annual report. The Court noted that the director gained 

nothing by failing to file the report and that the statute which 

required the report to be filed did not require proof that the 

director misled, imposed upon, or injured the corporation. Butler, 

205 P. at 249. 

In Brown v. Thornton (1967), 150 Mont. 150, 156, 432 P.2d 386, 

390, this Court held that the mere fact that defendants benefitted 
by plaintiff's acts was not of itself sufficient to require 

defendants to make restitution therefor under a theory of unjust 

enrichment, absent some element of misconduct or fault of some sort 

on the part of defendant. 

In Ruegsegger v. Welborn (1989), 237 Mont. 317, 773 P.2d 305, 

this Court held that holdover tenants were not entitled, under a 

theory of unjust enrichment, to the value of planting and 

harvesting crops which they lost when the owners reentered the 

property. The Court reasoned that the tenants were not holding the 

property under color of title or under a reasonable mistaken belief 

that they were entitled to ownership of the property. Ruesseqqer, 

773 P.2d at 308. 

In Randolph V. Peterson v. J.R. Simplot Co. (1989), 239 Mont. 

1, 8-9, 778 P.2d 879, this Court again held that the theory of 

unjust enrichment did not apply, because there was no advantage 

gained and no wrongdoing shown on the part of the party which was 

allegedly unjustly enriched. 

In the present case, the majority's holding expands the theory 

of unjust enrichment to allow recovery for any expenses reasonably 

incurred to maintain and prevent waste upon real property, regardless of whether defendants' wrongful acts caused the expenses and 

regardless of whether plaintiffs reasonably believed that they were 

entitled to ownership of the property (which they were not, until 

the redemption period expired). I would not so readily abandon 
longstanding restrictions on application of the theory of unjust 

enrichment. 

Section 25-13-802, MCA, provides: 

The judgment debtor or redemptioner may redeem the 

property from the purchaser any time within 1 year after 

the sale on paying the purchaser: 

(1) the amount of his purchase with interest at a rate 

established by the judgment in the action that led to the 

execution sale, up to the time of redemption; 

(2) the amount of any assessment or taxes which the 

purchaser may have paid thereon after purchase and 

interest on such amount; 

(3) the amount of any repairs, maintenance expenses, or 

other expenditures that the purchaser may reasonably have 

made after purchase for the maintenance of the property, 

with interest on the amounts from the date of 

expenditure; and 

(4) if the purchaser is also a creditor having a prior 

lien to that of the redemptioner other than the judgment 

under which such purchase was made, the amount of such 

lien with interest. 

There is absolutely no basis to inject a theory of unjust 

enrichment in this case in order to reach a result that would 

reward the Montgomerys. Section 25-13-802(3), MCA, provides a 

basis under the redemption statute that has nothing to do with 

unjust enrichment if the facts would support an award of repairs, 

maintenance, or other expenditures. The District Court's decision 

does not find or support the existence of any such facts in the 

record, and, therefore, § 25-13-802(3), MCA, is not a basis for 

rewarding the Montgomerys. The District Court made its decision 
upon substantial credible evidence and there has been no error at 

law. Therefore, under our standard of review, the District Court 

should be affirmed. 

It must be further noted that the Montgomerys were fully aware 

at the sheriff's sale of the right of redemption contained in the 

statutes. On the same date the sheriff's certificate of sale was 

issued, the Montgomerys entered into a contract to sell a portion 

of the redeemed property to a third party. Their contract stated: 

That both parties acknowledge that there is a possibility 

that the subject property may be redeemed by the 

foreclosure debtor or his assigns. That should Sellers 

become dispossessed from the property, or the same be 

redeemed, they shall refund Buyers purchase price, plus 

interest at the rate of six percent (6%) per annum, minus 

any costs or expenses reasonably incurred by Sellers. 

The Montgomerys were entitled to possession of the redeemed 

property for a relatively short period of time, from February 28, 

1989, to May 25, 1989, or fifty-six days. During this period the 

Montgomerys were well aware the property was subject to redemption. 

I would affirm the decision of the District Court. 

L' " Chief Justice - 
November 9, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

JON A. OLDENBURG 

Attorney at Law 

309 Bank Electric Building 

Lewistown, MT 59457 

John L. Pratt 

ASK & PRATT 

226 Main Street 

P.O. Box 685 

Roundup, MT 59072 

ED SMITH 

CLERK OF THE SUPREME COURT