No. 13343
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
EDWIN G. JOHNSON and ALICE JOHNSON,
husband and wife,
Plaintiffs and Appellants,
WILLIAM E. JOHNSON and RUTH N. JOHNSON,
husband and wife,
Defendants and Respondents.
Appeal from: District Court of the Thirteenth Judicial
District,
Honorable C. B. Sande, Judge presiding.
Counsel of Record:
I
For Appellants:
Ayers and Alterowitz, Red Lodge, Montana
Arthur W. Ayers argued, Red Lodge, Montana
For Respondents:
Robert F. Conwell, Red Lodge, Montana
Scribner and Huss, Helena, Montana
Lawrence D. Huss argued and Michael Maloney
appeared, Helena, Montana
Submitted: January 13, 1977
Decided :MAR 2 1977
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Filed.
1. '5 1-1
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
The district court of Carbon County, Hon. C. B. Sande, district
judge, sitting without a jury, entered judgment decreeing a par01
partition of property between two brothers. Plaintiff brother
Edwin, who sought a statutory partition, appeals.
The property in question, consisting of eight govern-
ment lots, is located about 2 1/2 miles southwest of Roberts in
Carbon County, Montana. The father of the parties had acquired
the farmlands from two separate sources during his lifetime.
Prior to his death he deeded all the land to his two sons Edwin
and William, the parties in the present litigation, as tenants
in common.
The father died in August, 1957. Thereafter defendant
William occupied and used lots 6, 14, 15 and 16 while Edwin
occupied and used lots 1, 4 and 5. A controversy exists concern-
ing lot 7. William claims that in 1957 the fence running through
lot 7 was taken down and moved by him to what he thought was the
boundary line between lots 4 and 7 and that he has occupied and
used all of lot 7 exclusively since then. Edwin claims that since
1957 when the fence was moved, he has used lot 7 as pasturage
whenever he wanted to without securing William's permission.
The fence was moved again in 1972 because, according to William,
Edwin did not think the prior location was fair to him.
Aside from the controversy over lot 7, Edwin and William
have each resided and occupied the respective parcel of land that
each was farming. Each owned his own livestock. Each pastured,
tilled, irrigated, fenced and fertilized his respective parcel.
Each paid the taxes on his own parcel. William paid the taxes on
lot 7. Neither accounted to the other for the proceeds from
his respective parcel. For an indefinite period of time, the
two brothers shared the use of some of the farm equipment.
William had made s u b s t a n t i a l improvements on h i s r e s i d e n c e and
land.
The w a t e r r i g h t s , b o t h d e c r e e d and c o n t r a c t u a l , were
d i v i d e d w i t h e a c h b r o t h e r paying h i s s h a r e of t h e c h a r g e s . The
m i n e r a l r i g h t s were h e l d i n common and t h e p r o c e e d s from t h e
leases d i v i d e d .
I n 1972 Edwin f i l e d t h e p r e s e n t a c t i o n s e e k i n g a s t a t u -
t o r y p a r t i t i o n of t h e l a n d . William was named a s d e f e n d a n t and
t h e i r r e s p e c t i v e wives were j o i n e d a s p a r t i e s f o r dower p u r p o s e s .
William f i l e d an answer and c o u n t e r c l a i m r e s i s t i n g s t a t u t o r y
p a r t i t i o n and c l a i m i n g a p a r o l p a r t i t i o n o f t h e l a n d s i n 1957.
Following t r i a l , Judge Sande e n t e r e d f i n d i n g s o f f a c t
and c o n c l u s i o n s o f law t o t h e e f f e c t t h a t t h e b r o t h e r s had made
a f a i r and e q u i t a b l e d i v i s i o n of t h e p r o p e r t y by p a r o l p a r t i t i o n
i n 1957, e x c e p t i n g m i n e r a l i n t e r e s t s , and t h a t Edwin had a c q u i r e d
l o t s 1, 4 and 5 t h e r e u n d e r and William had a c q u i r e d l o t s 6 , 7 ,
1 4 , 1 5 and 1 6 . Judgment was e n t e r e d t h e r e o n i n which Edwin's
s u i t f o r s t a t u t o r y p a r t i t i o n was d i s m i s s e d .
Edwin a p p e a l s , a s s i g n i n g two i s s u e s f o r review:
(1) S u f f i c i e n c y of t h e e v i d e n c e t o s u p p o r t t h e judgment
of p a r o l p a r t i t i o n .
( 2 ) Whether t h e wives o f t h e p a r t i e s must a g r e e t o a p a r o l
partition. Defendant William h a s i n j e c t e d a n a d d i t i o n a l i s s u e
f o r r e v i e w , v i z . whether t h e s t a t u t e o f f r a u d s b a r s a n e x e c u t e d
o r a l p a r t i t i o n of t h e p r o p e r t y .
W e f i r s t d i r e c t our a t t e n t i o n t o t h e a d d i t i o n a l i s s u e of
t h e s t a t u t e of frauds. W e hold t h i s i s a non-issue i n t h i s case.
The s t a t u t e o f f r a u d s was n o t p l e a d a s a n a f f i r m a t i v e d e f e n s e t o
W i l l i a m ' s c l a i m o f p a r o l p a r t i t i o n a s r e q u i r e d by Rule 8 ( c ) ,
M.R.Civ.P. A s t h i s i s s u e was n o t r a i s e d i n t h e d i s t r i c t c o u r t ,
it w i l l n o t be c o n s i d e r e d f o r t h e f i r s t t i m e on a p p e a l . Massa v .
SRS , Mont . -I -P.2d , 3 4 St.Rep. 72, d e c i d e d F e b r u a r y
22, 1977; Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57; Close
v. Ruegsegger, 143 Mont. 32, 386 P.2d 739.
Proceeding to the question of sufficiency of the
evidence to support a judgment of parol partition, we note the
pertinent findings of fact of the district court expressed as
follows :
"That during the year 1957 each party hereto
assumed possession of and exercised exclusive
use and control over a separate, specific parcel
of the whole property, paid taxes thereon and
has ever since continued to do so, except for
mineral interests which they continued to hold
and lease as tenants in common."
The function of this Court on appeal is to determine
whether there is substantial evidence to support this finding.
Spencer v. Robertson, 151 Mont. 507, 445 P.2d 48. The credi-
bility of the witnesses and the weight to be given their testi-
mony is a matter for the district court's determination in a
nonjury case. Hellickson v. Barrett Mobile Home Transp., 161
Mont. 455, 507 P.2d 523; Eliason v. Eliason, 151 Mont. 409, 443
P.2d 884. In determining whether the evidence supports the
findings and judgment, the evidence must be viewed in the light
most favorable to the prevailing party in the district court.
Strong v. Williams, 154 Mont. 65, 460 P.2d 90.
Applying these principles we find that the evidence,
though conflicting in some respects, is sufficient to support
the judgment of parol partition. There are four separate ele-
ments of proof substantiating the fact of parol partition:
(1) The actual physical partition between lots 4 and 7, (2) the
separate improvements by William on his parcel without contri-
bution or assistance by Edwin, (3) the separate operation by
each brother of his respective parcel with no accounting to the
other of the proceeds, and (4) the payment of taxes by each
brother on his respective parcel. Additionally there was at
least a tacit acquiescence by Edwin in all this and his accep-
tance of the benefits of the division.
Edwin points out that there was no partition of the
mineral interests in the land in support of his contention that
there was no parol partition. This is of no consequence, how-
ever, as land may be partitioned without partitioning some
interest therein such as mineral rights. 68 C.J.S. Partition,
Sec. 4, p. 10; Updike v. Smith, 378 Ill. 600, 39 N.E.2d 325.
The final issue is whether the wives of the brothers
must agree to the parol partition to make it effective. The
evidence discloses that Edwin's wife denies that she agreed to
any parol partition and that William's wife could not remember
being a party to any such agreement.
In 1957 when the parol partition occurred, each wife had
a dower interest in her husband's land. This dower interest
was inchoate and would not ripen into a vested or accrued right
until the death of her husband. Section 22-101, R.C.M. 1947.
Until that time, her dower interest was but an expectancy which
might or might not develop into an interest in the land itself.
Thus her participation or agreement in the parol participation
was not required. Had she survived her husband and thus acquired
an interest in the land itself, the binding effect of the parol
partition on her might be subject to question but that is not
this case. Both parties and their wives were living on July 1,
1975, the effective date of the Uniform Probate Code abolishing
dower rights in Montana. Section 91A-2-112, R.C.M. 1947. By
this enactment, the legislature removed this expectation of a
vested right in the land. Stovall v. Dept. of Revenue, 165 Mont.
180, 527 P.2d 62.
The district court's further finding that the parol
partition was a fair and equitable division of the property was
likewise supported by substantial evidence. The assessed value
of Edwin's parcel of property was $4,798 and William's was
$4,595, while the respective acreages were 120.45 for Edwin
and 138.76 for William.
The judgment of the district court is affirmed.
Justice
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