(DOWNLOAD) "Mills v. Pope Et Al." by Supreme Court of Montana " eBook PDF Kindle ePub Free
eBook details
- Title: Mills v. Pope Et Al.
- Author : Supreme Court of Montana
- Release Date : January 24, 1931
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 56 KB
Description
Mortgages ? Foreclosure ? Promissory Notes ? Assignment ? Note Payable to Order ? Endorsement by Payee Necessary to Preserve Negotiability ? Effect of Removal of Building from Mortgaged Premises ? Pleading ? Cross-complaint ? When Permissible ? Motion to Strike Pleading in Effect General Demurrer ? Admissions. Pleading ? Motion to Strike in Effect General Demurrer ? What Deemed Admitted. 1. A demurrer admits the truth of the facts well pleaded; a motion to strike is in effect a general demurrer and hence an allegation stricken will be deemed admitted. Promissory Notes ? Payable to Order ? Endorsement by Payee Necessary to Preserve Negotiability of Instrument. 2. A negotiable instrument payable to order must be indorsed by the payee in order to preserve its negotiability in the hands of a subsequent holder; a transfer without endorsement destroys its negotiability and the assignee takes it subject to all such defenses as might have been available against it in the hands of the payee. Mortgages ? Foreclosure ? Mortgage Note Payable to Order ? Assignment ? Complaint ? Absence of Allegation of Endorsement by Payee ? Defenses Available. 3. Held, in an action to foreclose a real estate mortgage securing a promissory note payable to order and assigned to plaintiff, that in the absence of an allegation in the complaint that the note was indorsed by the payee, any defense available to defendant against the payee and mortgagee could properly be interposed against plaintiff assignee. Same ? Mortgagor Without Right to Remove Building Covered by Mortgage from Premises ? Lien not Extinguished by Removal. 4. When a real estate mortgage is given it constitutes a pledge of all that then is part of the realty, and while the mortgagor has the right to use the premises, he has no right to remove a building therefrom or do any other act which impairs the mortgagees security; if he does remove it without the knowledge or consent of the mortgagee, the mortgage lien thereon is not extinguished. - Page 570 Same ? Removal of Building from Mortgaged Premises ? Nature of Building as Fixture not Changed by Removal. 5. Where the assignee of a mortgage knew at the time he took it that a dwelling-house on the land had been removed thereto from lands covered by a mortgage held by another, he may not be heard, in his action to foreclose, in defense to a claim asserted by the latter, that by the removal of the house the nature of the property had been changed. Pleading ? Cross-complaint ? When Filing Permissible. 6. Under section 9151, Revised Codes 1921, the filing of cross-complaint is authorized if the relief sought by defendant depends upon the subject matter upon which the action is brought or affects the property to which the action relates, and to some effect defeats or affects plaintiffs cause of action or lessens, modifies, or interferes with, the relief sought by plaintiff. Same ? Case at Bar. 7. In an action to foreclose a mortgage on farm lands, a defendant alleged by way of cross-complaint that she was the owner of a mortgage on an adjoining tract of land from which a dwelling-house had wrongfully been removed and placed upon the land covered by plaintiffs mortgage, without her knowledge or consent, etc. Defendant prayed that her lien on the dwelling-house be declared superior to that of plaintiff. Held, under the last above rule, that, since the relief sought by defendant related to the subject matter of the action, affected a part of the property involved therein and to some extent interfered with that sought by plaintiff, the trial court erred in striking the pleading, the fact that the cross-complaint incidentally affected lands not involved in plaintiffs cause of action not defeating defendants right to a determination of the questions presented by it.
 "Mills v. Pope Et Al." by Supreme Court of Montana " eBook PDF Kindle ePub Free){kind=link}