                                     No. 86-235
               TN THE SUPREME COURT OF THE STATE OF MONTANA
                                         1986




MARII4YN JESMAIN ,

                   Plaintiff and Respondent,
        -vs-
MARGARET MILLS,
                   Defendant and Appellant.




APPEAL FROM:       District Court of the Eighth Judicial District,
                   In and for the County of Cascade,
                   The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:

        For Appellant:
                   Emmons & Coder; H. William Coder, Great Falls,
                   Montana

        For Respondent :
                   Alexander   &   Raucus; Floyd Corder, Great Falls,
                   Montana




                                         Submitted on Briefs: Sept. 4, 1986
                                          Decided:   November 24, 1986



Filed: rdpV 2 6   1986




                                        Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


        This is an action for a declaratory judgment brought by
Marilyn Jesmain.           The District Court of the Eighth Judici~l
District, Cascade County entered               summary judgment in her
favor.       Margaret Mills appeals.      We affirm.
       The appellant raises four issues on appeal:
        1.    Did the District Court err in granting plaintiff's
motion for summary judgment?
        2.    Did   the    District   Court   err    in   concluding   that
appellant was not a judgment debtor or creditor as defined by
law.
        3.    Did the District Court err in concluding that there
were no material issues of fact which required resolution?
        4.    Did the District Court err in its conclusion that
appellant's redemption was invalid?
        In 1978, Marilyn Jesmain and Margaret Mills acquired
title to real property in Cascade County.                    Jesmain paid
$29,000 down and Mills promised she would make the monthly
payment to eliminate the remaining $20,000 balance.                    Both
women    executed a promissory note            and mortgage to Albert
Lawson for the remaining $20,000.             In 1981, Jesmain and Mills
executed another promissory note and trust indenture covering
the    same    property     to   Safeco Title       Insurance Company    as
trustees for Aetna Finance Company for $6,259.46.
       Mills failed to make payments on the original note and
in November, 1983, Jesmain filed a complaint against Mills
asking       that   sole   right, title    and   interest in the real
property he vested in Jesmain or alternatively, she moved for
partition    of    the    property.       Lawson        was    named    as    sole
lienholder on the property.
     The Court entered default                 judgment against Mills             in
March, 1984.      The court decreed:
     1. That [Jesmain] is the owner in fee simple of
     those certain lands and premises [at issue]       .               ..
     free and clear from all claims, rights, titles,
     estates, interest, liens or encumbrances of the
     Defendant Margaret Mills in that the Defendant
     Margaret Mills does not have any right, title,
     estate or interest in, or lien or encumbrance upon
     the said upon described property lands and premises
     or any thereof and that her claims to the same, or
     any part thereof, are null, void, and of no effect,
     and that the fee simple title of the Plaintiff is
     subject to a mortgage executed by Plaintiff and
     Margaret Mills which is a first lien on the real
     property, which mortgage is recorded at Reel 127,
     Document 554 of the records filed in the office of
     the Clerk and Recorder of Cascade County, Montana,
     which mortgage was in the original principal amount
     of $20,000.00.
     2. That Defendant Margaret Mills is forever barred
     and restrained from asserting any claim whatsoever
     in or to the above-described premises.
     No     appeal    was      taken    from     that     judgment.          In   a
counterclaim in the same proceeding, Albert Lawson sought to
foreclose his mortgage on the real estate.                      A foreclosure
judgment was      entered      in his     favor    in June, 1984.             The
property was ordered to be sold at sheriff's sale and the
deficiency, if any existed, to be entered against Jesmain and
Mills personally.        The property was sold at sheriff's sale in
August, 1984.      It sold for more than the outstanding mortgage
so no deficiency was entered.           The real property was redeemed
by Mills on July 30, 1985.              The next day, July 31, 1985,
Jesmain tendered the redemption amount to the sheriff and was
informed that Mills had already redeemed.
     Jesmain      filed       the    instant     action       for   declaratory
judgment    seeking      to    set   aside Mills'        redemption of        the
property.     The District Court granted summary judgment in
Jesmain's favor.        The Court concluded that when one joint.
tenant's interest in real property has been cancelled prior
to a foreclosure sale that tenant no longer has the right to
redeem.
     Although appellant raises four issues on appeal, those
issues can be summarized as, did the District Court err in
granting summary judgment for Jesmain?
     We    begin     with    the    standard    of    review   for   summa-ry
judgments.       It is well        settled that summary judgment is
proper if there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law.
Clarks Fork National Bank v. Papp (Mont. 1985), 698 P.2d 851,
42 St.Rep. 577; Cereck v. Albertson's, Inc. (1981), 195 Mont.
409, 637 P.2d 509.          There are no issues of material fact in
this case, so we turn to the issue of which party is entitled
to judgment as a matter of law.
     The issue is who has the right to redeem from sheriff's
sale?     Section 25-13-801, MCA provides:
     (1) Property sold subject                 to redemption, as
     provided by 25-13-710, or any             part sold separately
     may be redeemed in the manner             hereinafter provided
     by the following persons or               their successors in
     interest:
     (a) the judgment debtor, the judgment debtor's
     spouse, or his successor in interest in the whole
     or any part of the property and, if the judgment
     debtor or successor be a corporation, a stockholder
     thereof;
     (b) a creditor having a lien by          judgment,
     mortgage, or attachment on the property sold or on
     some share or part thereof subsequent to that on
     which the property is sold.   If a corporation be
     such creditor, then any stockholder thereof may
     redeem.
     This    Court    has    held    that   the      term   judgment debtor
"refers exclusively to the debtor whose land was subject to
forced sale.''     Marcellus v. Wright (1916), 51 Mont. 559, 563,
154 P. 714, 716.        In the ca-se at hand, Mills' interest in the
property had been terminated prior to the foreclosure, hence
she was not a judgment debtor pursuant to S 25-13-801, MCA.
She    was   also       not    a    redemptioner       as     provided    by    §

25-13-801(2), MCA because she was not a creditor who held a
lien on the property.
      Appellant contends that because Mills' statutory right
of    redemption was          not   pled    or   proved      in   the   original
termination proceeding or in the foreclosure action, the
judgments are both void.                 In effect, appellant seeks to
collaterally attack and reopen both judgments.                     We will not
do that.     Mills' right of redemption was terminated when her
right, title and interest in the property was terminated.                      It
did not exist at the time of the foreclosure action, nor does
it exist now.       Mills is a stranger to title who has no right
of redemption.
      Appellant's       last contention centers around the Aetna
mortgage.    That mortgage was satisfied in 1985, and a deed of
reconveyance was         issued     to     Jesmain and Mills by           Aetna..
Appellant contends that the deed of reconveyance creates an
after-acquired interest which entitles Mills to redeem.                        We
disagree.    The deed of reconveyance merely conveyed Jesmain's
interest     in   the    property        back    to   her.        The   deed   of
reconveyance could not create a new interest in the property
in Mills.
      We affirm the judgment of the District Court in a l l
respects.
We Concur:




    Chief Justice
