No. 82-22 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

VERLIN F. WIPPERT and LORETTA L. WIPPERT, Plaintiff and Appellant,

vs. THE BLACKFEET TRIBE OF THE BLACKFEET INDIAN RESERVATION, et al., Defendants and Respondents.

Appeal from: District Court of theNinth JudicialDistrict, In and for the County of Glacier Honorable R. D. McPhillips, Judgepresiding. Counsel of Record: For Appellant: Frisbee,Moore & Stufft, Cut Bank, Montana Selden Frisbee argued, Cut Bank, Montana For Respondents: Werner, Nelson & Epstein,Cut Bank,Montana James Nelson argued, Cut Bank, Montana Cannon, Parish & Sheehy, Ed Sheehy argued, Helena,Montana

Submitted: May 10, 1982 Decided: December 1, 1952 Filed:

### ail; 

# :1982Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

The Wipperts appeal a Glacier County District Court judgment that the Blackfeet Tribe is entitled to enforce a tribal court judgment as a matter of comity, and that the Robertsons are entitled to recover certain cattle pasturage fees from the Wipperts. The Wipperts contend that the ~ribe cannot enforce its tribal court judgmentby filing a notice of that judgment as a lien in the District Court, and that it cannot be tacitly implied that the ~ipperts, as assignors of the right to recover the pasturage fees, guaranteed that their assignee would pay those fees. We agree, and hold that a tribal court judgment can only be enforced in Montana courts by the institution of a special proceeding or action, but that the Tribe is entitled to enforcement of its judgment because the Wipperts themselves instituted an action to determine the validity of the judgment. We remand, however, for further consideration of whether the trial court determined the correct amount remaining unsatisfied on the judgment, and for amendment of the DistrictCourt judgment to provide that theWipperts are not liable to the Robertsons for pasturage feesbecause the Wipperts assigned their right to those fees to the Robertsonswithout guaranteeing that the Wipperts would pay them. Prior to July 1, 1976, the Wipperts, adult Blackfeet tribal members, owned 2,427 acres in Glacier County, Montana, known as the Stone Ranch. In 1974, the Blackfeet Tribe loaned the Wipperts $46,773.28 due and payable to the Tribe with 10percent interest not later than November 1, 1975. After the Wipperts defaulted on the loan, the Tribe obtained

a $46,773.28 judgment (plusinterest) against them in theBlackfeet Tribal Court onApril 15, 1976. OnApril 21, 1976, the Tribe filed a notice of this judgmentwith the Glacier County Clerk and Recorder and the Glacier County DistrictCourt. In June 1976, the Wipperts agreed to sell the Stone Ranch to the Robertsons and agreed to provide the Robertsons with a title insurancepolicy showing that the property was free and clear of all liens and encumbrances. When the title insurer discovered the Tribe's notice of judgment,the Robertsons refused to accept title. In order to assure the Robertsons that this notice of judgmentwould be cleared from the title, it was agreed that $20,000 of the purchase price would be kept in escrowwith the title insurance 

# ".

. . to cover the amount still remaining and unpaid to the Blackfeet Tribe [by] the Wipperts.. 

# . . Upon release of the judgment, the amount held in escrow, togetherwith the interest thereon, shallbe paid to [theWipperts].. 

# .." It

was also provided that if necessary to clear the judgment from the title, the escrow funds could be used to pay the j

udgment

# . Before June 1976, the Wipperts had agreed thatMrs. Wippert's brother, Larry Whitford, could put his cows to pasture on the Stone Ranch from June through October 1976 for $3,000per month. The Wipperts and Robertsons thenmade a written, supplemental agreement that the Robertsons would honor the buy-sell agreement,abide by the terms of the pasturage agreement, and defer possession of the Stone Ranch until October 1, 1976, in exchange for $12,000 of the pasturage fee. On July 1, 1976, the Wipperts conveyed the Stone Ranch to the Robertsonsby warranty deed. Almost a year later, onJune 29, 1977, the Wipperts filed a complain-tagainst the Robertsons and the Tribe, requesting that the Tribe set forth the nature of its claims to both the Stone Ranch and the escrow funds and that the court declare that the Tribe has no interest in or lien on either one. The Wipperts specifically requested that the court adjudicate the rights of all the parties in regard to the escrow funds. TheWipperts alsomoved the court to strike the Tribe's notice of judgment from the court records on the ground that itwas not a document entitled by law to be placed on the records. The court granted this motion to strike, but a copy of the notice of judgment remained on record as a - lis pendens in the Glacier County Clerk and Recorder's Office. The Tribe counterclaimed for $17,171.55 (the amount allegedly remaining unpaid on the tribal court judgment) and asked that this amount be taken out of the escrow funds held specifically for the purpose of satisfying that part of the tribal court judgmentwhich remained unpaid. The Robertsons also counterclaimed and requested that $10,500, the amount allegedly remaining unpaid under the supplemental agreement relating to deferring possession and obtaining $12,000 of the pasturage fees,be awarded them from the escrow funds. The trial court ruled in favor of both the Tribe and the Robertsons on their counterclaims. The court held that the tribal court judgment was entitled to full faith and credit as amatter of comity,regardless of whether the Tribehad a valid lien against the Wipperts' property. On the Robertsons' counterclaim the trial court ruled that the supplemental agreementwas more than a mere assignment of their right to the Robertsons to receive the pasturagefees paid by Larry Whitford for the use of the pasturage from June to October of 1976. Rather, the court held that the Wipperts had breached the supplemental agreement by not paying the $12,000 to the Robertsons. The court held that because the Wipperts had asked it to adjudicate the rights of all the parties and to quiet title to the escrow funds, section 70-2-202, MCA (procedural provisions applicable to quiet title actions), authorized the use of the escrow funds to satisfyboth the Tribe's and the Robertsons' judgments. The Wipperts appeal. The Wipperts first contend that the judgment in favor of the Tribe on its counterclaim is not supported by any evidence that the Tribe possessed a valid lien against the Stone Ranch. Although we agree that the Tribe did not have

a lien against the property,we also hold that the Wipperts, in their escrow agreement, agreed that the escrow funds could be used to satisfy any remaining tribal court judgment. TheWipperts, by this same agreement, also invited the Tribe to institute special proceedings to establish the validity of the tribal court judgment. Tribal court judgments are treatedwith the same deference shown decisions of foreign nations as a matter of comity. Hilton

### v. Guyot (1895), 159 U.S. 113, 163-64, 16 S.Ct. 139, 143, 40 L.Ed. 95, 108; In re Marriage of Limpy

(1981) , -Mont. - 

## , 636 P.2d 266, 38 St.Rep. 1885; State

ex rel. Stewart

### v. DistrictCourt (1980), -Mont

# . - 

### , 609 P.2d 290, 37 St.Rep. 635; Red Fox and Red Fox (0re.App. 1975), 542 P.2d 918; Wakefield v. Little Light (1975), 276 Md. 333, 347A.2d 228; In Re Lynch's Estate (1962), 92 Ariz. 354, 377 P.2d 199; Begay v. Miller (1950), 70 Ariz. 380, 222 P.2d 624. However, there is no Montana lawwhichallows a tribe or foreign nation toplace a lien against property situated inMontana by filinga notice of judgment with a Montana court. We do not even allow this for judgments rendered by our sister states; that is, toenforce

a judgment rendered ina foreign country or another state,

an -action -- ora specialproceeding must be institutedinthe DistrictCourt of the countywhere thejudgment is sought to be enforced. See section 26-3-203, NCA. Therefore, the DistrictCourt properly ordered the Tribe's notice of judgment be stricken from the court's records, and it was correct indeclaring that it didnot constitute a lien against theWipperts' property. Once a party filesan actionor a specialproceeding to enforce a tribalor foreignjudgment against a person, section 26-3-205(2), MCA authorizes, courts of this state topresume thatthe tribalor foreignjudgment 

# ".

.

# . is evidence of a right asbetween theparties 

# . . . and can only be repelled by evidence of a want of jurisdiction, want of notice totheparty, collusion, fraud, or clearmistake of law or fact." But here the Tribe failedtofilean action or special proceeding toenforce itsjudgment. Rather, theWipperts themselves filed that action for the Tribe when they filed their complaint requesting thatthe Tribe set forththe nature of its claims and that the court decide the rights of allthe parties. These requests laidthe foundation for the court's inquiry intothe validity of the tribal court judgment. Although theWipperts allegedintheirpleadings that the tribal courtjudgment was obtained by fraud, they offered no proof of fraud atany time.Nonethelesswe must remand for a determination of the proper amount of the tribal court judgment. The Wipperts have vaguely alleged in their briefs that the trial court may have made a factual mistake in determining the unsatisfied amount of the tribal court judgment. TheWipperts appear to argue that the tribal court judgmentwas partially satisfied because the Tribe confiscated certain lands and cattle which had been pledged as collateral for the loan. In addition, in determining the amount of the unsatisfied judgment, the trial courtmerely asked counsel for the tribe to submit the figure to the court, and the court simply adopted the figure submitted by the Tribe. The trial court made no independent determination of the correctness of the amount. Under these circumstanceswe can indulge in no presumption that the District Court judgment is correct. In all fairness,we must remand for a hearing to determine the proper amount of the judgment. We also hold that the trial court was correct in allowing the Tribe to satisfy the unpaid portion of its judgment from the escrow funds. The Wipperts' written escrow agreement specifically provided that

# ".

.. the sum of $20,000.00



# . . .will be held in an interestbearing escrow account

# . .. to cover the amount still remaining and unpaid to the 3lackfeet Tribe [by] the Wipperts.. 

# .. Upon release of the judgment, the amount held in escrow 

## .

# .

# . shallbe paid to 

# . . . [the Wipperts]. If necessary in order to clear the judgment



## . 

# . . the escrow funds [maybe used] to pay off the judgment and obtain a release of said judgment

# . . ."

As to the Robertsons' counterclaim asking that the

escrowmoney be applied to pay them under the terms of the supplemental agreement, the Wipperts correctly claim that the Robertsons have no right to the proceeds of the escrowfund because theNippert-Robertson supplemental agreement clearly provided that the Robertsonswere to receive the pasturage fee from Larry Whitford and not from the Wipperts. We agree that the supplemental agreementwas an assignment of theWippert rights to thepasturage fees to the Robertsons. That agreement states: "It is understood that you, the Buyer,will fulfill and carry out completely the terms of this summerpasturage agreement commencing with July 1, 1976, and thatyouwill be 

### --- entitled to payment 

### -- from Larry Whitford of the remainins $12,000

# .

# .." (Emphasisadded.) This is clearly an assignmentwhich contains no language creating an indebtedness between the Wipperts and the Robertsons. Contrary to the trial court's holding that the Wipperts should have clearly indicated their intentions to assign by using customary words of assignment, the law does not require that any special languagebe used to constitute a written assignment. Any language, however informal or poorly expressed, is sufficient if it shows an intent to transfer a right. See 6AC.J.S. Assignments § 43(b); Bergin v. Van Der Steen (Cal. 1951), 236 P.2d 613;Morris 

### v. Leach (Ore. 1917), 162 P. 253; Title Ins. & Trust Co. v. Williamson (Cal.App. 1912), 123 P. 245; Porter v. Title Guaranty & Surety Co. (Idaho1912), 121 P. 548; ~evins v. Stark (Ore. 1910), 110 P. 980;Galbreath v. Wallrich (Colo. 1909), 102 P. 1085. And an assignmentmay be limited by conditions contained therein. Northwest Oil & Refining Co.

v. Honolulu Oil Corp. (1961),195 F.Supp. 281. We hold that the language stating that

# ".

. .youwill be entitled to payment from Larry Whitford 

# ..

# ."was sufficient to show a present intent to transfer. Xt is an established rule of contract law that the assignor does not guarantee that the obligorwill pay, and that the assiqnoris not liabletothe assignee forbreaches of the assignment by the debtor. Restatement of the Law of Contract 5 175; 6A C.J.S. Assignments § 90; Patrons StateBank & Trust Co. v. Shapiro (Kans. 1974), 528 P.2d 1198; FirstNational Bank of Topeka 

### v. United Telephone Ass'n. (Kan. 1960), 353 P.2d 963; Robinson v. St. Maries Lumber Co. (Idaho 1921), 204 P. 671; Galbreath, supra. Therefore, we willnot imply thatthe Robertsons may recover theunpaid pasturage feefrom the Wipperts; any recovery must be sought from Larry Whitford. Weaffirm inpart and reverse inpart, and remand for further proceedings consistentwith thisopinion.

We Concur:

/chief Justice

dge, Sittingf usticeJohn C.Chief Justice Frank 

### I. Haswell concurring in part and dissenting in part: I dissent from that portion of the foregoing opinion which determines that a remand to the District Court is necessary for a redetermination of the correctness of the figure representing the unsatisfied portion of the tribal court judgment. Particularly, 

### I take issue with the following language in the majority opinion: 

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. . In addition, in determining the amount of the unsatisfied judgment, the trial court merely asked counsel for the tribe to submit the figure to the court, and the court simply adopted the figure submitted by the Tribe. The trial court made no independent determination of the correctness of the amount. Under these circumstances we can indulge in no presumption that the District Court judgment is correct. 

### In all fairness, we must remand for a hearing to determine the proper amount of judgment." It is well-settled law in Montana that District Court To cc

## .k e.5 judgmei~tsare presumed to be correct. +kx&es V. Baker (1980) Mont

# . - 

## , 611 P.2d 609, 37 St.Rep. 948; Rock Springs Corporation v. Pierre (1980), -Mont

# . - 

## , 615 P.2d 206, 37 St.Rep. 1378. The majority have assumed that because the District Court asked the tribe's counsel to compute the amount owing on the judgment and submit that figure to the court, the District Court did not verify the figures so submitted prior to signing the judgment. 

### I find nothing in the record to support this assumption and, therefore, dissent from the majority's action in remanding this case for that purpose. 

### I concur in the remainder of tne majority opinion.



### Chief ~ust 

### ice \