LULOFF v BLACKBURN
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NO. 95-191 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 LARRY LULOFF and JANET PERKINS-LULOFF, Plaintiffs and Respondents, v. DAVID BLACKBURNand, VELMA BLACKBURN, Defendants, Third-party and Respondents, Plaintiffs i ix,,., 1,: i'i &-" ,i;Jj_j 1; :~ :,"\.*$d /. ALEX MANWEILER and ROSIE MANWEILER, Third-party APPEAL FROM: Defendants. District Court of the Thirteenth Judicial District, In and for the County of Carbon, The Honorable G. Todd Baugh, Judge presiding. COUNSEL OF RECORD: For Appellant: K.D. Peterson, Montana Peterson and Schofield, Billings, For Respondent: Frank C. Crowley, Doney, Crowley & Shontz, Helena, Montana; Kent E. Young, Red Lodge, Montana Submitted Filed: on Briefs: Decided: August 17, 1995 November 14, 1995 Justice William In E. Hunt, July 1992, instituted court, Carbon County, parcel of proceedings land in the judgment Manweiler did Larry Court the not appeal Luloff to reenter possession and the Opinion that Perkins- Judicial District and to possess of appellants granted the Blackburns of the Court. and Janet in the Thirteenth seeking The District Blackburn. delivered respondents Luloff summary Sr. a certain David and Velma Luloffs' appeal. motion Alex for and Rosie Court erred acre parcel which summary judgment. We affirm. Issue The sole in granting issue on appeal is whether summary judgment in favor the District of respondents. Facts The land in dispute is part of appellants moved to undisputed. to the six ranch a 600 acre improvements grant is an approximately Boyd, the land. However, located parcel Their no written to the appellants near 1985 in residence and made was obvious document exists any interest Montana. whatsoever The various and is which purports to in the property in question. In 1989, the respondents and Rosie Manweiler bought the 600 acre (the Manweilers). were informed by the Manweilers who handled the sale the ranch did not include acre parcel. In the property description from Alex At the time of the sale, respondents that ranch as well attached the as the realtors a specific six to the contract for deed, a specifically 6.12 excluded Both the respondents that resided. parcel denominated "Tract and B", the the occupied "Tract B 'I was represented to the and the by the appellants assumed the six was in fact "Tract B", acre parcel acre parcel Manweilers respondents realtors the six was the same six Since as from the ranch. Manweilers from the ranch, parcel acre where the appellants realtors was excluded acre parcel the six which was excluded told from the ranch, occupied acre parcel them the the by the appellants excluded from the ranch by deed. Therefore, the land. located, the respondents However, the the parcel due to confusion respondents occupied the land Manweilers them to vacate District Court judgment, finding the respondents owned by a party to, but in May of the appellants themselves discovered owned that rather entirely "Tract "Tract B" "Tract separate B", from, named Woods. filed 1992, with the eviction Upon appellants' the property. respondents they B" was the occupied. and again served where "Tract by the appellants, adjacent the appellants In April the is that the respondents occupied parcel, owned by Woods, were unaware later, land was a different regarding were occupying by the appellants. One or two years B" was not knew the appellants this cause granted the that no material were entitled of action. respondents' facts to judgment 3 respondents notices and the requiring refusal to vacate, Subsequently, motion for were in dispute as a matter the summary and that of law. Standard Summary judgment fact exists matter Life Ins. This reviews - Ranch, 849 P.2d 212, The party showing as a complete well as its Vincelette, that favor Security 384, of for at 282, Bank v. party Vander 1036; 819, 820. summary judgment Court to make its 264 Mont. of Roundup (1993), summary judgment to judgment 1036; 284, 441, 257 Mont. 265, opposing the Pas (1991), the burden of material as Toombs v. 846 P.2d has issue may be drawn from the offered the of West (1994), v. City as a 214. entitlement 52 St.Rep. inferences grant v. 1035, 52 St.Rep. __I absence of any genuine 256 Mont. (1993), in moving Inc. judgment 52 St.Rep. -I Court's of material v. Metropolitan employed by the District Spain-Morrow 431, to Vincelette P.2d -I a District issue entitled P.2d -r - 444, 872 P.2d 330, 331; Minnie 429, is (1995), the same criteria ruling. party M.R.Civ.P.; Demaree (1995), Court using moving when no genuine Rule 56(c), Co. Brown v. is proper and the of law. of Review a matter Getter of fact, of Trucking, law. Inc. 266. All proof are to be drawn summary 250 Mont. reasonable judgment. 148, 152, First 818 P.2d 386. DISCUSSION The sole in granting claim on appeal summary judgment they orally the disputed purchased issue six contracted acres the ranch. is whether the District to the respondents. with the Manweilers in 1986, three The Manweilers 4 years before Court erred The appellants for the sale of the respondents deny the existence of any such The appellants contract. remain regarding agreement. whether They regarding whether these Under property than it the agreement, of than an estate must 30-11-111, property Isaak 1014; Quirin v. Weinberg v. the other (1985), 215 Mont. although i995), they nevertheless contract Manweilers. contract and effect of real party. (N.M. ~pp. questions had such an oral also be found remain to exist, assert was erroneous writing that may summary in the face of property out that the the statute grantor. 386, if 848 P.2d 830 P.2d 537. a court has the power to an oral See also Quirin, they have fully contract their to compel specific argue between them and the Manweilers should 5 the part should be allowed the Nashan Therefore, appellants of the oral performance that by Hartelius Nashan v. exists, performed they v. 830 P.2d 537. contract a of frauds, 176, MCA; Hayes 697 P.2d 1349. and the appellants less MCA. Generally, of one party 70-20-102, basis, real in the case of part-performance 894 P.2d 402; and are entitled by of a term for 257 Mont. 252 Mont. performance 391, On this signed (1993), point transfer or a lease and (1992), Section or and 70-20-101, concede no written claim any sale at will Smith the appellants to compel the specific the sale it does not comply with invalid. for factual questions should frauds, be in is However, legal The appellants statute 28-2-903, of real contend of the respondents one year) grant that questions. (other Sections therefore and the Manweilers of frauds. in favor remaining they further that escape the statute judgment contend from the earlier be given full to keep the oral force land. Contrary Court did contract court any to the appellants' not rule between found or respondents existence the Manweilers the claim on the respondents' right the 70-21-304, however, or validity the District of and the appellants. claim to the land an earlier Instead, the to be superior appellants might good faith purchasers were subsequent Section assertions, have, because without to the notice. MCA, provides: Every conveyance of real property, other that a lease for a term not exceeding 1 year, is void against any subsequent purchaser or encumbrancer, including an assignee of a mortgage, lease, or other conditional estate, of the same property or any part thereof in good faith and for a valuable consideration whose conveyance is first duly recorded. The appellants do not dispute consideration for as recording, the appellants title property to the Nevertheless, that the respondents the land and recorded the that admit considered bona fide the land could claim deed first. As far even the is well established purchasers attempt to respondents of record. cannot be in good faith. It subsequent valuable they have never had any color they appellants their paid because they did not buy in Montana that a bona fide purchaser is: one who at the time of his purchase advances a new consideration, surrenders some security, or does some other act which leaves him in a worse position if his purchase should be set aside, and purchases in the honest belief that his vendor had a right to sell, without notice, actual or constructive of any adverse rights, claims, interest, or equities of others in and to the property sold. Foster (citations v. Winstanley (1909), 39 Mont. omitted). 6 314, 316, 102 P. 574, 579 The appellants realtors and occupied by the also appellants' had "claim actual of the that part of of cannot the property ranch. obvious The use and the appellants constructive ownership" by the the the appellants' Therefore, and told claim notice land, of and such be considered the actual bona fide good purchasers. The Blackburns respondents have, never are unassailable generally, ownership. or constructive The notice of the land because the appellants any rights had, two historically fee title to the land to recognized (or ownership Lamme v. Dodson (1883), may acquire title a decedent's by transfer estate, who claims title, or establish If actual with of do not beyond those by mere occupancy. There person occupation be charged with ownership and have conveyed have confused cannot the appellants' or aware of were sellers) was not means the respondents faith respondents of the six acre parcel. respondents notice the (the appellants were occupation out Manweilers the respondents the point no deed clear the fee title party 4 Mont. the subordinate to the legal at through occupying possession, 560, 2 P. 298. law presumes another's the See, A person However, a defective person if a deed may still land cannot show adverse to be permissive 70-19-404, MCA, states: In every action for the recovery of real property or the possession thereof, the person establishing a legal title 7 from possession. occupancy Section title. that all, adverse acquire such as a devise of land has only title to property. or a common sale. piece or real or conveyance, or a gift, a given of) ways and to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title unless it appear that the property has been held and possessed adversely to such legal title for 5 years before the commencement of the action. This presumption more than legal the title. This of land seisin and continues till [sic] possession." Stephens 549 (citation Harkness v. Phelps (19941, (1957), 131 v. Development Co. v. Burke v. Stephens (1891), (1921), 308 land by any record by conventional title sufficient title means. by prescription, Section 70-19-406, In transfer, against this case, including Under ยง 70-19-406, stand against all 172 Mont. 887 P.2d 544, with by an actual See also 624; and 269, YA Livestock 1211; Holen Blackfoot v. Land 199 P. 685; Peters 115, 27 P. 403. Under the above presumption, can be overcome ousted P.2d 60 Mont. co-extensive (1977), omitted). 146, 11 Mont. he has a perfect he is 239, in Montana for man to be in the is Hurley 269 Mont. Mont. to which and possession 563 P.2d 546, 274, applied "The law deems every years. and possession right, adverse co. a hundred seisin complete has been consistently possession which is not owner who has acquired "Occupancy for except state accession, the transfer, adverse title to the any period confers and those will, a who have or succession." MCA. the the respondents transfer acquired and registration MCA, therefore, the respondents' title proven the appellants' ownership. by a property of the claim deed. cannot The appellants occupy because possession they requires question for Lindey's, cannot prescribed v. v. Goodover Marjerrison The appellants admit occupy, claim show adverse the payment the Inc. Burlingame they do not have a legitimate of all (1994), (1983), possession. taxes period. to the land they on the Section 264 Mont. 489, 204 Mont. any claim property in 70-19-411, 464, by adverse MCA; 872 P.2d 665 P.2d they have never paid the taxes and therefore Adverse 767; 1136. on the property possession must fail. Under the admitted title to the land, no claim the to it District their As appellants allow are so many years this have paid valuable indeed long-term, two note they the not land asked allow would while which never received in to The would theory of any authority such a result. that fact of their and to which the ways on the simple persuaded consideration 9 and possession. no authority would lose a part that, to recognized Court has not discovered is they because adverse They cite Court to relinquish We also land, or case law which would allow The respondents title. or and this In any case, result. the transfer through have no would be unfair. to award them the property or fairness, respondents Nevertheless, however, can show neither. in the statutes they them keep the let the appellants conveyed by mere occupancy, to above, the courts equity than that case, possession. after land of this adverse Court explained acquire other via eviction facts ordering the be an equitable ranch they appellants' a deed following for which hold clear occupancy was the alleged sale of the they attempted do so. they The disputed mere For held facts adverse occupation the taxes should Further, Manweilers. on the have land alerted have clear and but the were they not admit allowed to that any appellants is Any subordinate to the in uncontroverted cannot possession. reasons, judgment by The appellants parcel. these them was defective. respondents through summary to to pay the These title or land of the title the District favor show title Court they 10 through acquired respondents' did respondents. Affirmed. title not record err in to the transfer through title. granting
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