                               No. 87-516
               IN THE SUPREME COURT OF THE STATE OF MONTANA




AETNA LIFE INSURANCE COMPANY,
a corporation,
                Plaintiff and Respondent,
       -vs-
JAMES D. SLACK, JR., et al.,
                Defendants and Appellants.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Carbon,
                The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                James D. Slack, Jr., Red Lodge, Montana
       For Respondent:
                Dorsey & Whitney; Stephen D. Bell and Mary Jo
                Mickelson, Billings, Montana



                                  Submitted on Briefs:    April 28, 1988
                                  Decided:   June 9, 1988




                                  Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.


      Defendant/appellant James D. Slack, Jr., appeals a
summary judgment granted in favor of plaintiff/respondent,
Aetna Life Insurance Company.   Summary judgment was granted
September 18, 1986 by the Honorable Robert Holmstrom in the
Thirteenth Judicial District, Carbon County, Montana.     We
affirm in part and remand in part.
      On August 14, 1979, Bear Creek Land and Cattle Company
(Bear Creek), a Montana partnership, executed a promissory
note with Aetna Life Insurance Company in the amount of
$2,500,000. The loan was secured by executing a "mortgage
deed and security agreement" on property owned by Bear Creek
located in Carbon County.     Financing statements were also
filed to perfect the mortgagee's security interest in certain
fixtures and personal property described in the mortgage. The
defendant/appellant,   James    D.   Slack,    Jr.   (Slack),
subsequently assumed the obligations under the mortgage and
promissory note by entering an "assumption agreement" January
4, 1982. As part of the agreement, he received the property
used as security in the mortgage. Title to the property was
transferred to a partnership named the Sundance Land and
Cattle Company, in which Slack was a partner. Additionally,
on January 4, 1982, Slack and Aetna entered a "loan
modification agreement and amendment to mortgage," modifying
the payment provision of the promissory note and excluding a
certain portion of the land from the legal description
contained in the mortgage.    The financing statements were
also amended.
      Slack later defaulted on the promissory note and on May
25, 1984, Aetna accelerated the loan and declared the entire
amount of the loan due.    On April 4, 1985, Aetna filed a
complaint to foreclose on the mortgaged property. Aetna
moved for summary judgment and the District Court heard
arguments on the motion August 18, 1986.    During the hearing,
Slack admitted certain payments were not made and that Aetna
was entitled to a judgment on the promissory note, but
objected to the nature and extent of Aetna's prayer for
relief. The District Court subsequently concluded there was
no genuine issue of material fact, found Aetna was entitled
to foreclose its mortgage, and granted summary judgment in
Aetna's favor. A default judgment was rendered against the
remaining defendants on February 17, 1987, with the exception
of the Atlantic Richfield Company which was dismissed
pursuant to a stipulation with Aetna.
      Slack   raises   seven issues   for our consideration on
appeal :
      1. Did the District Court's order properly foreclose
appellant's interest in the property?
      2. Did the District Court commit error in not limiting
the foreclosure sale to only mortgaged property?
      3. Did the District Court commit error in not
excluding the sale of livestock and growing crops from the
sale?
      4. Did the District Court commit error in ordering
that the mortgaged real property be sold en masse?
      5. Did the District Court use incorrect figures to
calculate interest and the amount of the judgment?
      6. Does the promissory note implement a usurious
interest rate?
      7. Did the District Court incorrectly allow a
deficiency judgment against the appellant Slack?
           1. Did the District Court order properly
           foreclose appellant's interest in the
           property?
      Slack contends the District Court improperly foreclosed
his interest in the mortgaged property in its amended decree
of foreclosure and order of sale dated September 21, 1987.
Specifically, Slack challenges a statement by the District
Court declaring that the defendants "have no lien, right,
title, estate, claim, or interest on or to the mortgaged
property, whether real, personal, or mixed hereinafter
described."     Slack argues that this language incorrectly
severed all of his interest in the land prior to the
foreclosure sale and severely hindered his attempts to sell
the land. Slack's intent was to sell the land prior to the
foreclosure sale and satisfy the amount owing on the
promissory note. Slack states the wording of the order is in
violation of B 71-1-202, MCA, which states in pertinent part:
           A mortgage of real property shall not be
           deemed a conveyance, whatever its terms,
            so as to enable the owner of the mortgage
            to   recover possession of the real
           property without a foreclosure and sale.
       The order did not violate S 71-1-202, MCA, because it
did not enable the owner of the mortgage to recover
possession of the real property without a foreclosure and
sale. Further, the District Court's order did not and could
not affect Slack's one-year statutory right of redemption.
See, $ 71-1-228, MCA and S 25-13-801 et seq., MCA. With this
     3
right of redemption, Slack had the ability to negotiate with
potential third-party purchasers because he had the right to
redeem the property upon obtaining sufficient financing.
Therefore, the order did not incorrectly sever Slack's
interest in the property.
           2. Did the District Court commit error
           in not limiting the foreclosure sale to
           only mortgaged property?
      Slack states the order directs the sale of property
which is not included in the mortgage and was never intended
to be used as security for the loan.      Slack contends "the
District Court orders and adjudges that the land and other
property included in the mortgage, 'including, but not
limited to' the property described therein, is foreclosed and
ordered sold by the sheriff."        Slack argues that this
language is overly broad and expressly orders that the sale
not be limited to the mortgaged property. However, Slack's
argument rests on reading only isolated portions of the
order. When read entirely, it is plain that the sale is to
apply only to property used as security for the loan and
included in the agreements between the parties.
      Slack also contends that the District Court incorrectly
ordered a sale of the following property:
           (d) all irrigation equipment acquired by
           the defendant James D. Slack, Jr., and
           placed by him on the mortgaged property,
           including, but not limited to, that
           irrigation    equipment    described   in
           exhibits D and E to the complaint.
Slack states that neither the mortgage or security agreements
include such property. In his reply brief, Slack does admit
there is specific language in his security agreement with
Aetna addressing such property and we conclude this
particular issue is withdrawn.

           3. Did the District Court commit error
           in not excluding the sale of livestock
           and growing crops from the sale?
      Slack implies in the statement of this issue that the
District Court incorrectly ordered the sale of livestock at
the foreclosure sale.      However, he presents no further
statements in support of this allegation. We are unable to
locate any statements directing the sale of livestock in the
order, and it does not appear that any livestock was sold.
We find that this issue is without merit.
      Slack also states that his "right to harvest his
growing crops during the redemption period has been summarily
terminated by the decree and the crops ordered sold at
sheriff's sale [sic]."    However, Slack does not cite the
portion of the order which he claims to have this effect.
Indeed, it does not appear that any such order was made. We
conclude that this argument is without merit.

           4. Did the District Court commit error
           in ordering that the mortgaged real
           property be sold en masse?
      Slack asserts the District Court incorrectly ordered
that the real property be sold as one parcel, and that the
sale would have yielded a higher price if the land had been
sold as separate parcels.     Slack states that all of the
property is not contiguous and it is capable of being
rationally subdivided. He relies on S 25-13-704(2), MCA, and
contends that if a sale of real property consists of several
known lots or parcels, they must be sold separately.
      Slack is correct in that a foreclosure sale should
reasonably attempt to obtain a maximum price for the real
property.    His specific reliance on S 25-13-704, MCA,
however, is misplaced because the proceedings for foreclosure
of a mortgage are exclusively provided for in S 71-1-222,
MCA.   See, Federal Land Bank of Spokane v. Heidema (Mont.
1986), 727 P.2d 1336, 1338, 43 St.Rep. 2020, 2022; and,
Thomas v. Thomas (1911), 44 Mont. 102, 119 P. 283. Whether or
not it is appropriate to sell foreclosed property as one
parcel or as separate parcels will depend on the particular
facts of each case.      Under the facts of this case, the
mortgage itself provides that the land may be sold in whole.
Slack did not present the District Court with any solid
evidence, such as appraisals, affidavits, or other evidence,
that would offer substantial proof that the property would
sell for more in separate parcels.    The mortgaged property
was purchased and mortgaged as a single parcel.      Further,
Slack assumed the mortgage obligations as though the property
were one unit. It is generally within the discretion of the
District Court to determine whether property at a foreclosure
sale shall be sold as one unit or several. See, Elston v.
H i x (1923), 67 Mont. 294, 215 P. 657.   Absent an abuse of
that discretion we will not reverse the District Court's
determination. After reviewing the record, we conclude there
is no abuse of discretion and we affirm the District Court's
determination.

           5. Did the District Court use incorrect
           figures to calculate interest on the
           amount of the judgment?
      Slack contends that the District Court order had the
effect of charging two interest rates simultaneously
resulting in a total interest rate of 19.925% per annum. In
its amended decree of foreclosure and order of sale, filed on
September 22, 1987, the District Court determined principal,
interest, and other charges totalled $3,661,385.30 and that
this amount constituted the total judgment to Aetna against
Slack exclusive of the amounts contained in the bill of
costs. The order refers to two different rates of interest
owing to Aetna.  The first rate of interest comes from the
promissory note and was accrutng at a rate of $985.57 per
day. The second rate of interest refers to the 10% per annum
statutory rate of interest.     Slack contends the District
Court order is worded so that interest accrues simultaneously
at both rates resulting in a combined total rate of 19.925%
per annum on the judgment amount. Slack bases his argument
on the fact that the District Court states the interest
provided in the note applies until "the date of the
satisfaction of the judgment."   In contrast, the order also
states the 10% statutory interest rate applies "from and
after the date of judgment." It is clear that both interest
rates could not apply at the same time. Instead, it appears
that the intent was to apply the rate of interest provided in
the note until the date of judgment.      After the date of
judgment, September 22, 1987, the order clearly applies the
10% interest rate. In other words, the rate provided in the
promissory note, $985.57 per day, stopped on the date of the
District Court order at which time the 10% interest rate
began.    Aetna agrees with that interpretation and is not
seeking interest at both rates in a combined fashion.
       Slack also contends the amount of the judgment is in
error by more than $373,000. Other than the bald assertion
that the judgment amount is in error, Slack offers no
specific analysis explaining why this is so. Without further
explanation or analysis on the part of Slack, we find this
argument has no merit.
       Finally, Slack states that the District Court awarded
$2,300.21 for costs and disbursements relating to the
maintenance of the mortgaged property. Slack complains that
there is no supporting documentation for this award in the
record. Aetna makes no mention of this particular issue in
its brief and the record does not appear to contain any
support for this particular award. Therefore, we reverse and
remand as to this particular issue only.
           6. Does the promissory note implement a
           usurious interest rate?

      Slack contends that the promissory note provides for a
15% per annum interest rate on amounts not paid when due plus
a 4% late charge on those amounts. He states that the result
is a 19% per annum interest rate that should be held
usurious. However, in reviewing the record from the District
Court we note that Slack did not present any argument
relating to usury. Slack is presenting this argument for the
first time on appeal. It has long been the general rule that
we will not consider a legal theory raised for the first time
on appeal.    E.g., Hanley v. Dept. of Revenue (19831, 207
Mont. 302, 306, 673 P.2d 125.7, 1259.   See also, Velte v.
Allstate Ins. Co. (1979), 181 Mont. 300, 304-305, 593 ~ . 2 d
454, 456-457.

           7. Did the District Court incorrectly
           allow a deficiency judgment against
           appellant Slack?
      Finally, Slack contends that Aetna was not entitled to
a deficiency judgment because the mortgage is a purchase
money mortgage for which a deficiency is not allowed. Slack
relies on § 71-1-232, MCA, which states:
           Upon the foreclosure of any mortgage,
           executed to any vendor of real property
           or     to    his     heirs,     executors,
           administrators, or     assigns   for   the
           balance of the purchase price of such
           real property, the mortgage shall not be
           entitled to a deficiency judgment on
           account of such mortgage or note or
           obligation secured by the same.
This statute is inapplicable to the facts of this case.
Aetna is not the vendor of the real property and foreclosure
of the mortgage is not executed to Aetna to satisfy the
balance of the purchase price of the real property. Instead,
Aetna assumed the status of mortgagee so as to secure its
loan, and the foreclosure of the mortgage was executed to
satisfy the amount owing on the promissory note.     Section
71-1-232, MCA, does not prohibit a deficiency judgment under
the facts of this case.
      We affirm the judgment of the District Court with the
exception of the award of Two Thousand Three Hundred Dollars
and Twenty-one cents ($2,300.21) for reasons herein before
stated.
