No. 86-235 

TN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

MARII4YN JESMAIN , 

Plaintiff and Respondent, 

-vsMARGARET MILLS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Emmons & Coder; H. William Coder, Great Falls, 

Montana 

For Respondent : 

Alexander & Raucus; Floyd Corder, Great Falls, 

Montana 

Submitted on Briefs: Sept. 4, 1986 

Decided: November 24, 1986 

Filed: rdpV 2 6 1986 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

This is an action for a declaratory judgment brought by 

Marilyn Jesmain. The District Court of the Eighth Judici~l 

District, Cascade County entered summary judgment in her 

favor. Margaret Mills appeals. We affirm. 

The appellant raises four issues on appeal: 

1. Did the District Court err in granting plaintiff's 

motion for summary judgment? 

2. Did the District Court err in concluding that 

appellant was not a judgment debtor or creditor as defined by 

law. 

3. Did the District Court err in concluding that there 

were no material issues of fact which required resolution? 

4. Did the District Court err in its conclusion that 

appellant's redemption was invalid? 

In 1978, Marilyn Jesmain and Margaret Mills acquired 

title to real property in Cascade County. Jesmain paid 

$29,000 down and Mills promised she would make the monthly 

payment to eliminate the remaining $20,000 balance. Both 

women executed a promissory note and mortgage to Albert 

Lawson for the remaining $20,000. In 1981, Jesmain and Mills 

executed another promissory note and trust indenture covering 

the same property to Safeco Title Insurance Company as 

trustees for Aetna Finance Company for $6,259.46. 

Mills failed to make payments on the original note and 

in November, 1983, Jesmain filed a complaint against Mills 

asking that sole right, title and interest in the real 

property he vested in Jesmain or alternatively, she moved for 
partition of the property. Lawson was named as sole 

lienholder on the property. 

The Court entered default judgment against Mills in 

March, 1984. The court decreed: 

1. That [Jesmain] is the owner in fee simple of 

those certain lands and premises [at issue] . . . free and clear from all claims, rights, titles, 

estates, interest, liens or encumbrances of the 

Defendant Margaret Mills in that the Defendant 

Margaret Mills does not have any right, title, 

estate or interest in, or lien or encumbrance upon 

the said upon described property lands and premises 

or any thereof and that her claims to the same, or 

any part thereof, are null, void, and of no effect, 

and that the fee simple title of the Plaintiff is 

subject to a mortgage executed by Plaintiff and 

Margaret Mills which is a first lien on the real 

property, which mortgage is recorded at Reel 127, 

Document 554 of the records filed in the office of 

the Clerk and Recorder of Cascade County, Montana, 

which mortgage was in the original principal amount 

of $20,000.00. 

2. That Defendant Margaret Mills is forever barred 

and restrained from asserting any claim whatsoever 

in or to the above-described premises. 

No appeal was taken from that judgment. In a 

counterclaim in the same proceeding, Albert Lawson sought to 

foreclose his mortgage on the real estate. A foreclosure 

judgment was entered in his favor in June, 1984. The 

property was ordered to be sold at sheriff's sale and the 

deficiency, if any existed, to be entered against Jesmain and 

Mills personally. The property was sold at sheriff's sale in 

August, 1984. It sold for more than the outstanding mortgage 

so no deficiency was entered. The real property was redeemed 

by Mills on July 30, 1985. The next day, July 31, 1985, 

Jesmain tendered the redemption amount to the sheriff and was 

informed that Mills had already redeemed. 

Jesmain filed the instant action for declaratory 

judgment seeking to set aside Mills' redemption of the 

property. The District Court granted summary judgment in 
Jesmain's favor. The Court concluded that when one joint. 

tenant's interest in real property has been cancelled prior 

to a foreclosure sale that tenant no longer has the right to 

redeem. 

Although appellant raises four issues on appeal, those 

issues can be summarized as, did the District Court err in 

granting summary judgment for Jesmain? 

We begin with the standard of review for summa-ry 

judgments. It is well settled that summary judgment is 

proper if there are no genuine issues of material fact and 

the moving party is entitled to judgment as a matter of law. 

Clarks Fork National Bank v. Papp (Mont. 1985), 698 P.2d 851, 

42 St.Rep. 577; Cereck v. Albertson's, Inc. (1981), 195 Mont. 

409, 637 P.2d 509. There are no issues of material fact in 

this case, so we turn to the issue of which party is entitled 

to judgment as a matter of law. 

The issue is who has the right to redeem from sheriff's 

sale? Section 25-13-801, MCA provides: 

(1) Property sold subject to redemption, as 

provided by 25-13-710, or any part sold separately 

may be redeemed in the manner hereinafter provided 

by the following persons or their successors in 

interest: 

(a) the judgment debtor, the judgment debtor's 

spouse, or his successor in interest in the whole 

or any part of the property and, if the judgment 

debtor or successor be a corporation, a stockholder 

thereof; 

(b) a creditor having a lien by judgment, 

mortgage, or attachment on the property sold or on 

some share or part thereof subsequent to that on 

which the property is sold. If a corporation be 

such creditor, then any stockholder thereof may 

redeem. 

This Court has held that the term judgment debtor 

"refers exclusively to the debtor whose land was subject to 

forced sale.'' Marcellus v. Wright (1916), 51 Mont. 559, 563, 
154 P. 714, 716. In the ca-se at hand, Mills' interest in the 

property had been terminated prior to the foreclosure, hence 

she was not a judgment debtor pursuant to S 25-13-801, MCA. 

She was also not a redemptioner as provided by § 

25-13-801(2), MCA because she was not a creditor who held a 

lien on the property. 

Appellant contends that because Mills' statutory right 

of redemption was not pled or proved in the original 

termination proceeding or in the foreclosure action, the 

judgments are both void. In effect, appellant seeks to 

collaterally attack and reopen both judgments. We will not 

do that. Mills' right of redemption was terminated when her 

right, title and interest in the property was terminated. It 

did not exist at the time of the foreclosure action, nor does 

it exist now. Mills is a stranger to title who has no right 

of redemption. 

Appellant's last contention centers around the Aetna 

mortgage. That mortgage was satisfied in 1985, and a deed of 

reconveyance was issued to Jesmain and Mills by Aetna.. 

Appellant contends that the deed of reconveyance creates an 

after-acquired interest which entitles Mills to redeem. We 

disagree. The deed of reconveyance merely conveyed Jesmain's 

interest in the property back to her. The deed of 

reconveyance could not create a new interest in the property 

in Mills. 

We affirm the judgment of the District Court in all 

respects. 
We Concur: 

Chief Justice