No. 89-48 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

KANSAS CITY LIFE INSURANCE COMPANY, 

a corporation, 

Plaintiff and Respondent, 

-vsBRATSKY FARMS, a Montana corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the ~hirteenth ~udicial ~istrict, 

In and for the County of Carbon, 

The Honorable ~illiam J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

L. R. Bretz, In propria Persona, ~illings, Montana 

For Respondent: 

Byron H. Dunbar, U.S. Attorney; Frank D. Meglen 

Asst. U.S. Atty., ~illings, Montana 

Submitted on Briefs: July 7, 1989 

Decided: August 11, 1989 

4) 

< 

8; P ? (: 9%~ - jNd ? ,c,&.:z *> ;+< ,./Yac , &?.$ 

Clerk . . , ' <-- 

-7 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

L.R. Bretz appears pro per as the sole stockholder of 

Bratsky Farms, Inc. He appeals from an order of the District 

Court for the Thirteenth Judicial District, Yellowstone 

County, which denied his motion to vacate an October 31, 

1988, order denying a motion to quash or vacate a writ of 

assistance. We affirm. 

Bretz raises five issues relating to the validity of a 

foreclosure sale of property owned by Bratsky Farms, Inc. 

Bratsky Farms, Inc., owned a ranch in Carbon County, 

Montana, on which Kansas City ~ife Insurance Company held a 

mortgage. The individuals named as defendants in this action 

held stock in Bratsky Farms, Inc., at the time this action 

was filed. On March 19, 1984, the ~istrict Court issued a 

Judgment and Decree of Foreclosure against the defendants. 

On the same date, the court issued an order of sale of the 

property. Also on that date, Bratsky Farms, Inc., filed for 

bankruptcy, resulting in an automatic stay of the foreclosure 

proceedings. 

On February 26, 1985, after the stay was lifted by order 

of the bankruptcy court, the Carbon County Sheriff issued a 

certificate of sale to Kansas City Life Insurance Company. 

On February 20, 1986, the Farmers Home ~dministration (FmHA), 

a junior lienholder, redeemed the property by paying Kansas 

city Life Insurance Company the sum of $337,384.77. The 

Bratskys made application to lease the property from FmHA, 

but their application was rejected and their right to appeal 

that decision has been exhausted. 

Bretz claims sole shareholder status in Bratsky Farms, 

Inc., beginning January 15, 1988. On June 1, 1988, FmHA 

filed a mot..on for an order for writ of assistance, asking 
for assistance to obtain immediate possession of the ranch, 

which Leo C. and ~ouise J. Bratsky still occupied. The writ 

was issued June 1, 1988. It commanded the sheriff of Carbon 

County to enter the property and eject the Bratskys. 

Bretz filed a motion to quash the writ of assistance. 

The ~istrict Court denied the motion and Bretz appeals. 

I. 

Was the sheriff's sale void because it was based on 

improper statutory notice? 

Bretz argues that the publication notice of the February 

26, 1985, sheriff's sale did not comply with $3 25-13-701, 

MCA. He also argues that due process was denied him because 

actual notice of the sale was never given to Bratsky Farms, 

Inc., or to its trustee in bankruptcy. 

section 25-13-701, MCA, requires that notice of sale on 

execution be given 

(c) in case of real property, by posting a similar notice, particularly describing the property, 

for 20 days in three public places in the county 

where the property is situated and also where the 

property is to be sold, which may be either at the 

courthouse or on the premises, and publishing a 

copy thereof once a week for the same period in 

some newspaper published in the county, if there be 

one, which notice shall be substantially as follows: . . . 

The affidavit of publication shows that notice was published 

on February 7, 14, and 21, 1985. The sheriff's sale took 

place on February 26, 1985. Bretz points out that only 19 

days passed between the date of the first posted notice and 

the date of the sale. 

The District Court cited Burton v. ~ipp (19041, 30 Mont. 

275, 76 P. 563. In that case, this Court held that the 

notice requirement in the antecedent to the above statute is 

directory only and that the failure to observe it does not 
avoid the sale as to a purchaser who is free from fault. 

Burton, 76 P. at 566. The Court also held that the remedy 

provided in what is now S 25-13-702, MCA, (that a sheriff 

selling without the required notice is liable for $500 to the 

aggrieved party) must be deemed exclusive. 

Bretz cites several cases involving sheriff's sales of 

personal property, but those cases do not apply here, as this 

was a sale of real property. He also cites Sink v. Squire 

(Mont. 1989), 769 P.2d 706, 46 St.Rep. 352, which discussed 

service of process, not notice of a sheriff's sale. We hold 

that Burton controls and that the provision days ' 

notice instead of 20 days' notice does not invalidate the 

sheriff's sale. 

111. 

Is the FmHA notice of redemption deficient? 

Bretz argues that the FmHA notice of redemption is 

deficient in that it does not set forth exactly what was owed 

on the judgment, what the purchase price was, what interest 

had been paid, what taxes had been paid, or what the purchaser's lien debt was. He also points out that the notice 

erroneously gives the date of the foreclosure sale as April 

Section 25-13-806, MCA, sets forth the requirement for a 

notice of redemption: 

Notice of redemption, liens, and taxes and assessments pzd. Written notice of redemption must be 

given to the sheriff and a duplicate filed with the 

county clerk, and if any taxes or assessments are 

paid by the redemptioner or if he has or acquired 

any liens other than that upon which the redemption 

was made, notice thereof must in like manner be 

given to the sheriff and filed with the county 

clerk, and if such notice be not filed, the property may be redeemed without paying such tax, assessment.~, or lien. 
The statute does not require that the notice include any of 

the information Bretz lists. The notice of redemption given 

in this case provided a description of the real property, the 

date of the judgment and decree of foreclosure, and the 

amount of the judgment. It gave the total amount paid in 

redemption and was signed by an agent of FmHA as redemptioner. It is true that the date given in the notice as the date 

of the foreclosure sale is incorrect; it is the date of the 

originally-scheduled sale, before the bankruptcy. However, 

the statute does not require that the date of the foreclosure 

sale be stated in the notice. We conclude that the information provided was sufficient for the purpose of giving notice. We hold that the notice of redemption is not 

deficient. 

Is the sheriff's deed void and invalid as a basis for 

the writ of assistance? 

Bretz argues that a sheriff's deed cannot be issued 

until 60 days after a notice of redemption has been given. 

The redemption by FmHA occurred in February 1986 and notice 

of redemption was dated June 17, 1986. The sheriff's deed is 

dated July 7, 1986. 

Section 25-13-810, MCA, provides: 

When purchaser entitled - to conveyance. If no 

redemption be made within 1 year after the sale, 

the purchaser or his assignee is entitled to a 

conveyance; or if so redeemed, whenever 60 days 

have elapsed and no other redemption has been made 

and notice thereof given and the time for redemption has expired, the last redemptioner or his 

assignee is entitled to a sheriff's deed; but in 

all cases, the judgment debtor shall have the 

entire period of 1 year from the date of the sale 

to redeem the property. 

The statute allows a sheriff's deed to be issued when 1) 60 

days have elapsed after the redemption, 2) no other 
redemption has been made, 3) notice of redemption has been 

given, and 4) the time for redemption has expired. The 

statute gives no time requirement related to the notice. We 

hold that the sheriff's deed is valid as a basis for the writ 

of assistance. 

IV. 

Did the failure to provide Bratsky Farms, Inc., with 

actual notice of the setting of the judicial sale of the 

property deny due process? 

Bretz cites Peterson v. Montana Bank of Bozeman, N.A. 

(1984), 212 Mont. 37, 687 P.2d 673, as authority that actual 

notice must be given to the mortgager before a judicial sale 

may be held. However, the holding in Peterson was limited to 

the situation presented there. Factors included no court 

record of posting of notice of the sale, inadequacy of the 

purchase price at the sale, and a sale of realty treated as a 

sale of personal property. Peterson, 687 P.2d at 680. 

Section 25-13-701, MCA, set forth above under Issue 11, 

does not require personal notice to the mortgager in sales on 

execution of judgment on real property. In the present case, 

the stockholders of Bratsky Farms, Inc., were represented by 

counsel and appeared in person at the proceedings leading up 

to the judgment against them, before the execution sale. We 

hold that the failure to provide Bratsky Farms, Inc., with 

actual notice of the judicial sale did not deny due process 

of the law. 

v. 

Did the District Court err in issuing a Writ of Assistance because the record fails to show that FmHA was entitled 

to the writ? 

Bretz argues that the following defects were present in 

the motion for an order of writ of assistance: the affidavit 

in support of the FmHA motion showed the wrong dates for the 
sheriff's sale and the certificate of sale; no judgment was 

properly obtained; there was no proper notice of redemption, 

no proper publication of notice of sale, and no actual notice 

of sale; the redemption time was exceeded according to the 

dates given on the notice; and the sheriff's deed was issued 

too early. 

Many of the defects claimed under this issue are discussed under the other issues in this appeal. It is true 

that the dates given in the affidavit as the dates of the 

sheriff's sale and the certificate of sale were incorrect. 

We admonish respondent's counsel, who executed the affidavit 

in support of the motion for the writ, to exercise caution in 

insuring the accuracy of his filings. 

For a writ of assistance to properly issue, there must 

be a judgment, a sale conducted according to the judgment, 

and a sheriff 's deed to the property. Federal Land Bank of 

Spokane v. Heidema (Mont. 1986), 727 P.2d 1336, 43 St.Rep. 

2020. The record shows that those elements were present here 

and met the statutory requirements. We hold that the District Court did not err in issuing the Writ of Assistance. 

Affirmed. 

We concur: