No. 84-471 

IN THE SUPREME COURT OF THE STATE OF XONTANA 

1985 

MaSSAR CATTLE CO., INC., FRED 

W. MASSAR, et al., 

Plaintiffs and Respondents, 

DONALD REESE, D.J. REESE, PATRICIA 

and MELLISH PALLAS, et al., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Madison, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF FtECOXD: 

For Appellants: 

David L. Holland, Butte, Montana 

Max Hansen, Dillon, Montana 

For Respondents: 

Schulz, Davis & Warren, Dillon, Montana 

Submitted on Briefs: April 4, 1985 

Decided: 2, 1985 

Filed: J!/!d \1'pj8fj 

7- 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appeal by the appellants from a summary judgment entered 

against them in the District Court, Fifth Judicial District, 

&?adison County. b7e affirm. 

On September 28, 1979, Massar Cattle Co., Inc. and 

Donald and D. J. Reese entered into a contract for deed 

wherein Massar agreed to sell and Reese agreed to buy certain 

ranching property located in Madison County, Montana. The 

terms of the agreement provided for a purchase price of 

$420,000 to be paid as follows: $15,000 upon execution of 

the agreement, $15,000 on October 15, 1979, $20,000 on April 

1, 1980, $50,000 on September 30, 1980 and an $8,000 interest 

payment on April I., 1981. The above sums were to comprise a 

$100,000 downpayment plus interest. The $320,000 balance of 

the purchase price was to be paid in annual installments of 

$33,907.20 due on September 30 of each year for the years 

1981 through 1988. The entire unpaid balance of the 

principal and interest due under the contract was to be paid 

on September 30, 1989. Interest was assessed at 9$% per 

annum on the unpaid balance starting on September 30, 1980. 

Reese paid the first two installments of $15,000 on the 

downpayment then on May 28, 1980 assigned his interest in the 

contract to Patricia Ann Pallas. Massar consented to the 

assignment. Mrs. Pallas entered the land and commenced 

making payments under the contract to Massar. Pallas made 

all the remaining payments necessary to satisfy the 

downpayment plus the 1981 and 1982 annual installments of 

$33,907.20. Pallas failed to make the September 30, 1983 
payment under the contract. Massar mailed a notice of 

default to Pallas on October 4, 1983. 

Pallas failed to tender the overdue installment to 

Massar within the 60-day grace period set forth in the 

default clause of the contract. The "default clause" in 

essence provided that Massar would have the option of (1) 

obtaining a quit claim deed from Reese (assignee Pallas); 

being relieved of any further obligation under the contract; 

retaining all payments as rents or liquidated damages; and 

requiring Reese (Pallas) to vacate the land and disclaim any 

interest therein; or (2) Zeclare the entire sum due and 

payable and seek any appropriate legal remedy. 

When Pallas failed to comply with the above provision, 

forfeit her interest, and vacate the premises, Massar filed 

suit on March 6, 1984. The suit prayed that Pallas' interest 

in the contract be terminated, her payments forfeited, and 

that all title and right to and possession of the property be 

returned to Massar. Pallas filed a motion to dismiss on 

March 28, 1984 but did not file an answer to the Massar 

complaint. Massar served combined interrogatories and 

requests for admissions on Pallas on April 9, 1984. Pallas 

did not answer them. Thereafter, Massar moved for summary 

judgment and a hearing was set for June 5, 1984. The 

District Court granted plaintiff Massar's motion for summary 

judgment on June 5, 1984, but later on June 12, 1984 the 

court vacated its order of summary judgment and set a new 

hearing for July 3, 1984. At the July 3, 1984 hearing to 

consider plaintiffs' motion for summary judgment the District 

Court allowed defendant Pallas to testify. Based on her 

testimony and the unanswered interrogatories and requests for 

admissions which were deemed admitted, the District Court on 
July 6, 1984 granted plaintiffs' motion for summary judgment 

and issued a writ ordering the Sheriff of Madison County to 

assist plaintiffs in taking possession of the property. This 

appeal fol.lows. 

Appellants contend that there exists a genuine issue of 

material fact on whether, on both statutory and equitable 

grounds, a forfeiture should be granted. Such a contention 

is without merit. The law in Montana on summary judgment is 

well settled. See Cereck v. Albertson's Inc. (1981), 195 

Mont. 409, 637 P.2d 509. Appellants failed to answer the 

complaint within 20 days of service of the complaint and 

summons as prescribed by Rule 12 (a) , M.R.Civ.P. No leave of 

the court to file an untimely answer was requested and no 

answer was ever served or filed. As a result the averments 

in respondents' complaint are deemed admitted. Rule 8(d), 

M.R.Civ.P. Appellants did not answer respondents' requests 

for admissions so the requests are also deemed admitted. 

Rule 36 (a) , M.R.Civ.P. The District Court, though not 

required to do so, allowed appellants to testify at the 

summary judgment hearing. Based on the above, there is no 

material issue of fact with regard to appellants' assumption 

of the Reese contract for deed, appellants' failure to make 

the September 1983 payment, the existence of the forfeiture 

clause in the contract and respondents' compliance with the 

notice provisions necessary to enforce the forfeiture clause, 

and appellants failure to tender payment due under the 

contract. 

The District Court ruled. as a matter of law that $5 

28-1-104, MCA, was inapplicable to the facts of this case and 

ordered that the forfeiture clause of the contract be 

specifically enforced. Section 28-1-104, MCA, clearly does 
not apply because the appellants failed to tender any 

compensation to Massar. 

Appellants contend for the first time on appeal that 

they a.re entitled to equitable relief from forfeiture. 

Appellants did not plead equitable relief from forfeiture as 

an affirmative defense. We held in Sundial Land Co. v. Gold 

Creek Ranches (19821, 198 Mont. 247, 252, 645 P.2d 936, 939, 

that forfeiture is an affirmative defense and must be pleaded. 

in defendant's answer. We need not consider this issue for 

the first time on appeal. 

Respondents requested in their brief that this Court 

order the District Court to award attorney fees to them 

pursuant to the terms of the contract. We will not consider 

any relief to the respondents in excess of the District 

Court's judgment unless the respondents have filed a 

cross-appeal. Rule 5, M.R.App.Civ.P. No cross-appeal was 

filed. The judgment of the District Court is affirmed. 

Affirmed. 

,,/I I Justice 

I. 1 0 

We Concur: