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No. 91-439 and 91-531
IN THE SUPREME COURT OF THE STATE OF MONTANA

1992
NO. 91-439
MARVIN H. GOOKIN and SHARON GOOKIN,

Plaintiffs and Respondents,

-vs-
SEP  8 1992  
CATHERINE M. HUNTLEY as personal representative of the estate of GENE HUNTLEY deceased, Defendant and Appellant.  F-3dd CLERK OFSUPREhlE COURT @3AI]E. OF LwoNTANA  
and  

NO. 91-531

J. LAWRENCE STODDARD,
Plaintiff and Appellent,

MARVIN H. GOOKIN and SHARON GOOKIN,
Defendants and Respondents.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Fallon,
The Honorable C. B. Sande (91-439) and Roy C.
Rodeghiero (91-531), Judges presiding.

COUNSEL OF RECORD:

For Appellant:

Gene Huntley, Attorney Pro Se (91-531), Baker, Montana; John Martin Morrison, Morrison Law Firm (91-439), Helena, Montana
For Respondent:

Larry Cole, Attorney at Law (91-439 and 91-531),
Billings, Montana; Robert L. Stephens (91-439 and
91-531), Billings, Montana

Submitted on Briefs: May 21, 1992

.-a Decided: September 8, 1992

Filed:

Clerk

Justice R. C. McDonough delivered the Opinion of the Court.

This is a consolidation of appeals from the Sixteenth Judicial
District Court, Fallon County. Appellant appeals from judgment in
favor of respondents Marvin H. and Sharon Gookin (Gookins). The
District Court is affirmed.

The issue for review is:

Did the District Court err by ordering the one-third interest
in property owned by Gene Huntley (Huntley) be sold towards
satisfaction of a judgment in favor of Gookins?

The original case in this matter, Stoddard v. Gookin, was
filed in 1972 relative to a contract for deed. This case comes to
us for a third time. In the first action we remanded for further
fact finding. Stoddard v. Gookin (1981), 191 Mont. 495, 625 P.2d

529. In the second, we affirmed a grant of specific performance
and reversed and remanded the matter for the court to award
appropriate damages. Stoddard v. Gookin (1983), 203 Mont. 435, 661
P.2d 865.

In 1970, Gookins entered into a five year lease with an option to purchase the property subject to this action with the 'McGhees' .
Thereafter, Gookins entered an agreement with J. Lawrence Stoddard
(Stoddard) whereby Gookins would exercise the option to purchase
the property on behalf of Stoddard. The agreement required
Stoddard to make the down payment and named Stoddard and Gookins as
co-tenants. Under the agreement, Stoddard was to pay Gookins
$30,000 and Gookins would deed the full interest over to Stoddard
who would then be responsible to McGhee for payments. The

2

agreement was executed but Stoddard paid Gookins only two thousand
of the thirty thousand dollars. Subsequently, Gookins did not
transfer the deed to Stoddard.

Stoddard, then represented by Gene Huntley, filed an action in
1972 for specific performance and filed a lis pendens pertaining to
the property. On February 2, 1982, the trial court ordered
specific performance of the agreement. The Gookins were ordered to
convey the deed to Stoddard and Stoddard was to pay the Gookins
$28,000. Gookins, pursuant to said order and judgment, signed and
delivered to Stoddard a warranty deed on April 19, 1982. Stoddard
deposited the $28,000 he owed Gookins with the clerk of court. On
appeal, this Court affirmed on specific performance but remanded
for a determination of other damages due Gookins. Stoddard v.
Gookin (1983), 203 Mont. 435, 661 P.2d 865.

Following the February 2, 1982 appealed judgment, Stoddard
deeded a one-third interest in the subject property to Huntley,
apparently for payment of attorney fees. After a second trial, the
District Court entered final judgment on June 1, 1986 awarding
Gookins a net total of more than $104,000. To satisfy the
judgment, Gookins levied upon Stoddard's two-thirds interest in the
land and sold it for $88,000.

The second action is between the Gookins and Huntley and is to
determine whether or not Huntley's one-third interest in the
property is subject to the 1986 judgment. The District Court ruled
in favor of Gookins. The one-third interest Huntley obtained from
Stoddard was determined to be subject to and could be sold upon

execution in satisfaction of the remainder of the 1986 judgment.

Huntley's position is that the Gookins are estopped from
claiming a lien on his interest in the property because they
conveyed a warranty deed to Stoddard after the claimed purchase
money lien arose at the time of entry of the 1982 judgment.
However, a lis pendens was filed on behalf of Mr. Stoddard prior to
the time of any judgment lien and prior to Huntley's receipt of
one-third interest in the property. The lis pendens served as
notice to all subsequent purchasers or grantees, including Huntley,
that the property was subject to the pending litigation. Fox v.
Clarys (1987), 227 Mont. 194, 738 P.2d 104. Huntleytooktitle and
possession of the one-third interest in the property with actual
notice of and subject to the final disposition of the action
between Stoddard and Gookins.

Gookins conveyed their interest in the subject property to
Stoddard pursuant to and in compliance with an order of the court.
A person acting in compliance with a court order cannot later be
estopped as a result of such involuntary action. Furthermore,
estoppel is an equitable remedy. It would not be equitable to
assert estoppel and prevent the Gookins from obtaining what they
are entitled to for the property they conveyed.

Huntley further argues that under 5 25-9-301, MCA, Gookins'
interest and right to claim a lien on Huntley's property has

expired. Section 25-9-301, MCA, provides:

Docketing of judgment--lien. (1) Immediately after
the entry of the judgment in the judgment book, the clerk
must make the proper entries of the judgment under
appropriate heads in the docket kept by him.

(2) From the time the judgment is docketed, it
becomes a lien upon all real property of the judgment
debtor not exempt from execution in the county, owned by
him at the time or which he may afterward acquire until
the lien ceases. The lien continues for 6 years unless
the judgment be previously satisfied.

Huntley contends the lien was created by the February 2, 1982 judgment and that because no execution was issued in the 6 years following that date, the Gookins are now precluded from satisfying the judgment from the property. Huntley relies on Marlowe v. Missoula Gas Co. (1923), 68 Mont. 372, 219 P.2d 1111, for its holding that the bar of 3 25-9-301, MCA, should apply. However, in Marlowe, the bar applied and the real estate was freed from judgment liens because of the appellant's laches. In the instant case, Gookins have diligently defended and pursued their rights and interest in the real property and proceeds therefrom.
The judgment of February 2, 1982 in favor of the Gookins was
appealed. We remanded because the court erred in determining what
the Gookins were entitled to for the subject property. There was
not a final determination of the matter in regards to damages owed
the Gookins. In fact, the instant case demonstrates that the
Gookins are still trying to collect their due.

The issue regarding damages due the Gookins was re-litigated
and final judgment entered June 2, 1986. The matters we resolve
here are generated by and within the six years next preceding the
June 2, 1986 judgment.

We conclude, 3 25-9-301, MCA, is not a bar to the Gookins1 action. We further conclude, for the reasons stated above, that under the doctrine of lis pendens, Huntley took title and possession to the property subject to the final disposition of the
noticed litigation involving the subject property. Huntley's
interest in the property is subject to the 1986 judgment of the
District Court in favor of the Gookins. The District Court order
of sale of the property to satisfy the judgment is affirmed.

Justice / we concur:
1
Chief Justice

Justices

Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority. The majority uses
one judgment date for the purpose of creating a lien on the

Stoddard property and a second modified judgment date for the
purpose of extending the statute of limitations for execution on

the judgment. While that may accomplish the intended result, it
seems internally inconsistent to me.

The judgment pursuant to which the Gookinss lien on the real
estate arose was entered on February 2, 1982. However, that

judgment was only for the amount c~f $28,000.

One-third of Stoddardls interest in the real estate was conveyed to Huntley on April 6, 1982. If it was subject to a lien, it was subject only to the lien created by the February 2, 1982, judgment.
On June 2, 1986, a second judgment was entered in favor of
Gookin for the additional amount of $104,000. However, at that
time Stoddard no longer owned one-third of the land to which the

original judgment attached. That interest had been conveyed to
Huntley.
The only basis for any lien against Huntleyss interest in the

real estate would have to arise from the 1982 judgment. However, 5 25-9-301, MCA, is very clear to' the effect that that judgment expired six years after it arose. It provides in relevant part
that:

(2) From the time the judgment is docketed, it
becomes a lien upon all real property of the judgment
debtor not exempt from execution in the county, owned by

him at the time or which he may afterward acquire until
the lien ceases. The lien continues for 6 years unless
the judgment be previously satisfied.

The majority distinguishes Marlowe v. Mksoula Gas Co. (Mont. 1923) ,
219 P. 1111, which previously interpreted the statute. However,
the statute requires no interpretation. The only lien which gives
the Gookins any right to execute on the Huntley property was
created by a February 2, 1982, judgment and was not enforced within
six years. After six years it expired. No execution was issued in

this case until November 3, 1989, more than six years after the
lien was created. Therefore, there was no basis for issuing the
writ of execution.

The majority chooses to rely on the 1982 judgment for the
purpose of creating a lien which is enforceable against Huntley,
and yet relies on the 1986 judgment for the purpose of commencing
the statute of limitations within which the lien had to be
enforced. Picking and choosing starting dates in this fashion is
not defensible on the basis of any authority mentioned in the
majority opinion, or that I am otherwise familiar with.

For these reasons, I dissent from the opinion of the majority.

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