No. 86-396 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

JOHN A. STARK and NADINE A. STARK, 

husband and wife, 

Plaintiffs and Respondents, 

-vsMAYNARD BORNER and OPAL BORNER, 

husband and wife, 

Defendants and Appellants, 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Maynard and Opal Borner, pro se, Grass Range, 

Montana 

For Respondents: 

Calton, Hamman, Calton & Wolff; Rodd A. Hamman, 

Billings, Montana 

APRlr.. ,.j 

Filed: 

Submitted on Briefs: Feb. 19, 1987 

Decided: April 9, 1987 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Maynard and Opal Borner, husband and wife, appeal an 

August 12, 1986 preliminary injunction issued by the District 

Court of the Tenth Judicial District, Fergus County. We 

uphold the District Court's preliminary injunction, but 

remand so that the court may conduct a hearing to consider 

whether its findings were proper in light of Sharbono v. 

Darden (Mont. 1986), - P.2d - , 43 St.Rep. 400 and other 

cases cited herein. 

Maynard and Opal Borner entered a contract for deed in 

November, 1983, for the purchase of a 3,700 acre cattle ranch 

near Grass Range, Montana, from John and Nadine Stark. The 

purchase price for the place was $525,000. The Borners paid 

approximately $107,000 down on the contract and agreed to an 

annual payment of almost $40,000 until the full amount was 

paid. Annual payments were made in 1984 and 1985, but the 

Rorner's were unable to meet the obligation of the 1986 

payment when it came due in January. 

On January 23, 1986, the Starks sent the Borners a 

notice of default. When the Borners failed to cure the 

default within sixty (60) days, the Starks sent a notice of 

acceleration on March 26, 1986. The second sixty days 

expired May 26, 1986. In June, the Starks began moving their 

cattle onto the property, as well as cutting and baling the 

hay. 

Although the parties discussed a rental arrangement and 

renegotiation of a new contract, no agreement was ever 

reached. The Borners had written a $1,000 check for pasture 
lease, but stopped payment on it when their attorney advised 

them that the Starks had no authority to be in possession. 

On July 9, 1986, the Starks filed a complaint requesting 

that they be put in possession of the property, as well as 

that the Borners be enjoined from interfering with Stark's 

possession, that the contract for deed be forfeited and that 

the Borner's right, title, and interest in the property he 

terminated. The Starks also requested attorney's fees. 

After an August 12, 1986 hearing, the District Court 

made the following findings: 1) that the Borners had not 

made the land contract payment due Starks, 2) that all 

contract terms had been complied with by Starks, 3) and 

that the Starks had demonstrated a strong chance of 

prevailing on the merits of the suit. For these and other 

reasons, the District Court found that injunctive relief 

restraining the Borners from interfering with the Stark's 

repossession of the property was appropriate and ordered the 

Borners to vacate the ranch by September 6, 1986. 

On September 5, 1986, the Borners filed an emergency 

application to this Court for a stay of the District Court's 

order granting the preliminary injunction giving possession 

of the ranch premises to the Starks. This Court denied the 

Borners' request, explaining that the questions and evidence 

presented by the Borners were considered and denied by the 

District Court and that the Borners failed to show a case for 

their emergency application. 

The Borners now appeal, pro set raising the following 

issues: 

1. Whether the District Court was required to make a 

finding that the Starks would be irreparably harmed in order 

to issue the injunction. 

2. Whether the District Court erred in choosing not to 

require a written undertaking. 
3. Whether the District Court erred in finding that the 

Borners defaulted under the terms of the contract for deed. 

4. Whether the District Court is properly providing the 

due process required for mortgage foreclosures. 

The issues raised by the Borners are properly raised on 

appeal. Rule 1 (b) (2) of the Montana Rules of Appellate Civil 

Procedure provides: 

(b) In civil cases a party aggrieved may appeal 

from a judgment or order, except when expressly 

made final by law, in the following cases: 

(2) from an order . . . granting or dissolving an 

injunction. 

The statute could not be clearer in providing for the 

Rorners' right to appeal the District Court's issuance of the 

preliminary injunction. 

As the Borners are representing themselves in this 

appeal it is understandable that they are unfamiliar with the 

laws concerning preliminary injunctions. Borners first 

contend that the District Court should not have granted the 

preliminary injunction because it fail-ed to make a finding 

that the Starks would suffer irreparable injury if the 

injunction was not issued. 

Section 27-19-201, MCA, provides that a preliminary 

injunction order may be granted in the following cases: 

(1) when it shall appear that the applicant is 

entitled to the relief demanded and such relief or 

any part thereof consists in restraining the 

commission or continuance of the act complained of, 

either for a limited period or perpetually; 

(2) when it shall appear that the commission or 

continuance of some act during the litigation would 

produce a great or irreparable injury to the 

applicant; 

(3) when it shall appear during the litigation 

that the adverse party is doing or threatens or is 
about to do or is procuring or suffering to be done 

some act in violation of the applicant's rights, 

respecting the subject of the action, and tending 

to render the judgment ineffectual; 

(4) when it appears that the adverse party, during 

the pendency of the action, threatens or is about 

to remove or to dispose of this property with 

intent to defraud the applicant, an injunction 

order may be granted to restrain the removal or 

disposition; 

(5) when it appears the applicant has suffered or 

may suffer physical abuse under the provisions of 

40-4-121. 

The District Court's order granting the preliminary 

injunction stated: 

That it thus appears to the court that plaintiffs 

Stark have demonstrated a strong chance of 

prevailing on the merits herein, which under the 

contract includes right to possession, and that 

defendants should be temporarily restrained from 

interfering with that possession during the 

pendency of the suit. 

That it further appears defendants may be unable to 

respond in damages if plaintiffs prevail herein, 

which would render any substantial damage award 

plaintiffs may recover ineffectual and 

unrecoverable, and further that Starks' damages 

from Borners continued possession of the lands 

while suit is pending would be quite difficult or 

impossible to accurately determine. 

It is apparent that the District Court granted the 

preliminary injunction pursuant to S 27-19-201(1) and (3). 

Findings that satisfy the elements of subparagraph (2) are 

not also required. 

The subsections are disjunctive, meaning that findings 

that satisfy one subsection are sufficient. All five 

subsections need not be satisfied for an injunction to issue. 

The District Court properly granted injunctive relief 

pursuant to S 27-19-201 (1) and (3). 
Borners next contend that the injunction is void because 

the District Court did not require Starks to post a written 

undertaking. Montana's law regarding requirements of 

security for damages on granting an injunction is set out in 

$ 27-19-306(1), MCA, which states: 

27-19-306. Security for damages. (1) On granting 

an injunction or restraining order, the court or 

judge shall require a written undertaking to be 

given by the applicant, in such sum as the court 

considers proper, for the payment of such costs and 

damages as may be incurred or suffered by any party 

who is found to have been wrongfully enjoined or 

restrained. The undertaking may not be required in 

domestic disputes or when the state or a state 

agency, a county or subdivision thereof, or a 

municipal corporation is the party seeking the 

injunction or restraining order. - In any - case, - the 

court -- in its discretion may waive the undertaking 

-- in the interest - of justice. (Emphasis supplied.) 

The District Court may, in its discretion, waive the 

undertaking in the interest of justice. Although the 

District Court did not require a bond from the Starks, it 

protected the Borners' interest by ordering the Starks to 

refrain from selling or encumbering the property (other than 

by a lease for less than a year); by ordering that the hay 

which had been cut, baled and stacked could not be sold or 

used by either party without court order or written agreement 

between the parties; and by ordering that the Borners cou1.d 

cut and sell the barley crop they had planted on 85 acres of 

the property. As we find no abuse of discretion, we uphold 

the District Court's conclusions. 

The Borners third argument is that the District Court 

granted the preliminary injunction before a finding was made 

that Borners were in default under their contract. This is 

not the case. The District Court found that Borners were in 

breach and that Starks had complied with the terms of the 

contract in declaring a default: 
That the evidence clearly established that 

defendants Borner had not made the land contract 

payment due plaintiffs January 2, 1986, that 

plaintiffs have complied with the unambiguous terms 

of said contract in giving defedants written notice 

of default and also notice of acceleration of the 

contract balance, that defendants have not tendered 

the full principal and interest due and are in 

breach of their contract of purchase of the 

premises involved. 

There is no indication in these findings or in the 

arguments made by the Borners that the District Court abused 

its discretion or had insufficient evidence to conclude that 

the Borners were in default. The District Court's order 

granting preliminary injunction was proper. 

The final assertion made by Borners is that the District 

Court improperly "ousted" them from the property because it 

did not provide them the due process required for mortgage 

foreclosures. They argue that the Starks have not proven in 

court that forfeiture is Stark's proper remedy, and that 

they, Borners, have not been given full opportunity to 

present the merits of their case. 

The District Court's issuance of the preliminary 

injunction was not a final adjudication. The injunction was 

used as an interlocutory procedural device to protect the 

subject of the controversy until a final determination could 

be reached. by the court. The Borners' due process 

protections have not been violated insofar as the grant of 

the preliminary injunction is concerned. 

This Court is concerned, however, about the lack of any 

findings regarding the sellers' ability to convey title after 

they accelerated payment. The established rule of law is 

that a vendor cannot, while unable to tender good title, 

enforce a forfeiture provision of a contract on default of 

the vendee. Silfvast v. Asplund (1933), 93 Mont. 584, 20 
P.2d 631. Wells Fargo and Company v. Page (Or. 1905), 82 P. 

856; Sievers v. Brown (Or. 1899), 56 P. 171. 

. . . the mere failure of the purchasers to make 

the deferred payments did not ipso facto entail a 

forfeiture of their rights under the contract, and, 

when the vendor elected to give the notice which 

would effect that result, the forfeiture could only 

be declared if, at the time she demanded final 

payment, she could convey marketable title. 

(Citations omitted. ) 

Silfvast v. Asplund, 93 Mont. at 595, 20 P.2d at 636. 

This rule was enunciated most recently in Sharbono v. 

Darden (Mont. 1986) , - P.2d - , 43 St.Rep. 400, where we 

agreed with the Fourth Judicial District's finding that the 

vendee's "failure to make the balloon payment when due is 

excused by Sharbono ' s [vendors] inability to convey title. " 

Sharbono v. Darden, 43 St.Rep. at 404. 

Therefore, this Court sustains the District Court's 

issuance of the preliminary in junction pending the District 

Court's determination or remand as to whether its findings 

were proper in light of the aboveAed cast 

We Concur: -/ 

-- - 

Justice 

Q. u