§ 2-9-528 — Lien On Real Estate Of Surety -- Action To Compel Specific Performance

2-9-528 . Lien on real estate of surety -- action to compel specific performance. (1) When an action is commenced in any court in this state, for the benefit to the state, to enforce the penalty of or to recover money upon an official bond or obligation or any bond or obligation executed in favor of the state of Montana or of the people of this state, the attorney or other person prosecuting the action may file with the clerk of the court in which the action is commenced an affidavit stating either positively or on information and belief that the bond or obligation was executed by the defendant or one or more of the defendants (designating whom) and made payable to the people of the state or to the state and that the defendant or defendants have real estate or some interest in land (designating the county or counties in which the land is situated) and that the action is prosecuted for the benefit of the state. The clerk of the court receiving the affidavit shall certify to the county clerk and recorder of the county in which the real estate is situated the names of the parties to the action, the name of the court in which the action is pending, and the amount claimed in the complaint, along with the date of the commencement of the suit.
(2) Upon receiving the certificate, the county clerk and recorder shall endorse upon the certificate the time of its receipt. The certificate must be filed in the same manner as notices of the pendency of action affecting real estate. Any judgment recovered in the action is a lien upon all real estate belonging to the defendant situated in any county in which the certificate is filed or to one or more of the defendants, for the amount the owner of the real estate is or may be liable upon the judgment, from the filing of this certificate.
(3) In any action to compel the specific performance of an agreement to sell real estate affected by the lien created by the filing of the certificate referred to in subsection (2), which agreement was made prior to the filing of the certificate but the purchase price of the real estate is not due until after the filing of the certificate, the judge of the district court in which the action for specific performance is tried shall, if the purchaser is otherwise entitled to specific performance of the agreement, order the purchaser to pay the purchase price or as much of the purchase price that may be due to the state treasurer, taking the state treasurer's receipt for the payment. Upon payment, the purchaser is entitled to enforce the specific performance of the agreement and take the real estate free from the liens created by the filing of the certificate. The money paid to the state treasurer must be held pending the litigation mentioned in the certificate and subject to the lien created by the filing of the certificate. If judgment is recovered against the defendant, the state treasurer in the treasurer's settlement shall pay to the county treasurer the amount due the county.

Legislative History

(1)En. Sec. 1086, Pol. C. 1895; re-en. Sec. 414, Rev. C. 1907; re-en. Sec. 505, R.C.M. 1921; Cal. Pol. C. Sec. 983; re-en. Sec. 505, R.C.M. 1935; Sec. 6-333, R.C.M. 1947; (2)En. Sec. 1087, Pol. C. 1895; re-en. Sec. 415, Rev. C. 1907; re-en. Sec. 506, R.C.M. 1921; Cal. Pol. C. Sec. 984; re-en. Sec. 506, R.C.M. 1935; Sec. 6-334, R.C.M. 1947; (3)En. Sec. 1090, Pol. C. 1895; re-en. Sec. 418, Rev. C. 1907; re-en. Sec. 509, R.C.M. 1921; Cal. Pol. C. Sec. 987; re-en. Sec. 509, R.C.M. 1935; Sec. 6-337, R.C.M. 1947; R.C.M. 1947, 6-333, 6-334, 6-337; amd. Sec. 70, Ch. 61, L. 2007.