                                    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.     be affirm.
                      7
       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:
