DAUGHERTY v DAUGHERTY
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No. 95-270 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1996 JOHN P. DAUGHERTY, Plaintiff and Respondent, v. TRESSIE E. DAUGHERTY, APPEAL FROM: District Court of the Tenth Judicial District, In and for the County of Fergus, The Honorable John R. Christensen, Judge presiding. COUNSELOF RECORD: For Appellant: Torger S. Oaas, Lewistown, Montana For Respondent: Timothy Jr O'Hare, Lewistown, Submitted Filed: Montana on Briefs: Decided: January February 18, 1996 22, 1996, Justice William E. Hunt, Pursuant to Section 1995 Internal cited Operating as precedent document with to State Court of John his present of the Court. Montana Supreme Court decision by its shall filing and by a report appeals Fergus of its the judgment County, Daugherty, interest granting a result Company. of the Tenth the plaintiff declaratory in certain not be as a public Company and West Publishing P. establishing Court Daugherty respondent, and be published Publishing District 3(c), the following of this Tressie the Opinion Paragraph and shall Reporter Judicial I, Rules, the Clerk Appellant, Sr. delivered real judgment property. We affirm. The issue presented for our Court District sole erred in that Tressie had delivered Daugherty finding the deed to the Spring review is whether Daugherty Creek property the (Tressie) to her son John (John). FACTS In September purchased Road, 1975, Tressie and her husband Paul a house in Lewistown, (Spring Montana, Creek property). In October deed was properly recorded. road and moved into construction parents' permission. located Tressie John lived the there until same year, son, John, the worked in 1976 with for six months out of 1993. the off-season, house in either 1979 or 1980, and was joined 2 Creek residence the year during Paul. on Spring of the and Paul's (now deceased) about Tressie moved into shortly thereafter his the by On May 12, the Spring tenants Creek with properly 1982, Tressie property rights of recorded. about and Paul survivorship. About four six of the Spring Creek property She testified that she and Paul. John believed not were a present he held would recording. weeks effect granted have as deed later, Paul was only was to John upon the deed to she did interest. in ownership the until John that transfer death believe the testified property after then testified not John joint told Tressie interest complete John 1982 ownership a joint and At trial, the deed that of his he that but, both of he parents deceased. From 1982 through 1992, house and worked together Daugherty died continued to After in live in regarding privacy. During a dispute premises. John moved 1994, Tressie quit refused. claim John Declaratory validity his Judgment of a recorded all lived property. John in Paul and out suit Act, the arose to became Tressie between the owners legal deed as Tressie be an invasion contacted name from of to counsel and evict his see him from voluntarily. presented interest brought John considered Tressie time, John's to the which, and John remove March After In 1993, could In improving Tressie what this on and John house. tenants. and John she the Paul, 1992. death, joint Tressie, November Paul's surviving him to the of a deed transferring The warranty deed and its both the Paul, the ownership if Tressie, to believed she the executed in the against 55 27-s-101, warranty deed. 3 John Spring his with Creek mother et. a deed, seq., A bench and asked property. John under the to determine trial was Uniform held the on March 2, deed to with after 1995, be valid, his and mother survivorship. which in a judgment that John the. Tressie was entered presently Spring held Creek declaring a joint property the interest with rights of Tressie had appeals. DISCUSSION Whether delivered the the District deed The standard is whether Production law to 1285, correct. 91, for a district are "clearly whether the of nor her the Spring it her erroneous. (1991), of fact Interstate 'I 250 Mont. 320, 323, conclusions court's (1994), son John? findings of interpretation of 264 Mont. Creek Absent their contends the A grant of grantor. Section (1989), 238 Mont. property 500, accomplished by words, require the actual handled in 503, v. handing a way that Koski the acts, the 103, law is 106, 870 intent position grant John effect only 779 P.2d 54, 55-56. or both. In Montana, the 498, a present 4 the 502, May delivered. by the Schwartz Delivery the so long Co. can law grantor's be does not as it is intention. 857 P.2d interest it present delivery Earl document shows a never upon v. to pass the executed Romain 259 Mont. a present they MCA; of John give to effect over that when deed was in unequivocally (1993); to intent takes 70-l-508, intent property Tressie interest, has been Tressie's husband's deed. 1982 Accordingly, Barnard to court's a district court's that property DeSaye We review 1287. her in Hauseman v. and on appeal, neither interest 12, Creek finding 93. At trial was review In re Marriage P.2d in Spring Association determine erred the findings Credit 820 P.Zd to of the Court in 715, property 717. is an essential 480, element 781 P.2d 650; Roth of delivery. 284; v. Bodine Palutzke Cleveland-Arvin v. the been of properly the is deed. recorded the Mont. and the Gross case, the 350 422 P.2d P.2d 358; 215 P.2d 963. duly 350 P.2d convincing 29, 463, presumption presumption "clear 77, 239 Mont. when a deed has been created -, Roth (1989), 149 Mont. 123 Mont. and the by overcome 137 (1950), of delivery V. Gross (1967), (19601, and acknowledged, recording Bodine Cleveland A presumption executed v. Gross is at strengthened 360. of When a deed has delivery evidence." by can only be 781 P.2d at Gross, 285. In warranty deeds transferring real son as joint and the in possession, After he had son placed This in 781 P.2d there by the court found the that the the to the the deeds the land. the father as reconvey the told the a joint the son tenant. property, the father, even though he and the documents of father retained property that three and maintain deeds, son to recorded deeded land, had delivery raised by recording. 286. argues ample 1982 recording judgment, both Tressie is held from occupy the the presumption at On appeal, contends of the to the asked and The father name on Court control overcome Gross, his father refused. remained not and recording when the Later, property and continued executing that executed tenants. father his father District in Gross evidence of the Court comparison is distinguishable. to overcome deed. to the 5 the presumption In a memorandum reviewed Tressie supporting raised its the facts in Gross. The Gross case, the instant case presented a more compelling argument for the presumption of Tressie's statements regarding her not clear and not enough delivery. The lack District of Court understanding convincing. found of the effect of A grantor's self presumption the serving of delivery. overcome the although Tressie retained and control the the statements possession occupy presumption of particular subsequent presumption when land, and grantee. a stronger with dominion years the and prior We hold erroneous, Tressie, the the for Spring Creek and continued to this did has held that the not exists 286; Roth -r Court. case, the 350 P.2d of rebut the the at John Creek grantor 360. case presents Unlike delivery. and Spring the evidence between of rebut to The instant Tressie over not sufficient presumption the exercised property for joint eleven dispute. District court's and John. the deed found the 1982 deed created Paul, a judgment in the and the The May 12, for Gross control to District 781 P.2d to And of relationship at are at 286. Court is 781 P.2d the argument in acts Gross, court This a close Gross, We agree parties delivery. deed were plaintiff, Court's findings interpretation of a present were interest We affirm John, property. Affirmed. 6 the the in District declaring law not clearly was correct. the property Court's his grant present interest to of We Concur: Justices
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