No. 85-85
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
JOHN L. WRIGHT,
Plaintiff and Appellant,
-vs-
LARRY P. BLEVINS,
Defendant and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District
In and for the County of McCone,
The Honorable R. C. McDonough, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert Hurly, Glasgok, Montana
Habedank, Cumming, Best & Maltese, Sidney, Montana
For Respondent:
Arnie A. Hove, Circle, Montana
Submitted on Briefs: July 11, 1985
Decided: August 29, 1985
Filed: !3uG 2 9 1905
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appeal by John L . Wright from a judgment against him
entered in the District Court, Seventh Judicial District,
McCone County.
Wright brought an action in the District Court to set
aside a deed to real property situated in McCone County which
Wright had delivered to Blevins, principally on the grounds
of fraud and lack of consideration. The District Court held
in favor of Blevins. We affirm the District Court.
On July 13, 1982, John L. Wright, a single man, made,
executed and delivered to Larry P. Blevins, for a
consideration of $1.00, approximately 4500 acres of ranch
land in McCone County. In the deed, Wright reserved unto
himself all income from the minerals owned by him during his
natural life.
On January 13, 1983, Wright filed an action in the
District Court alleging that the deed was procured by fraud
on the part of Blevins, that the deed lacked consideration,
and that the deed was not based on any agreement between the
parties. The District Court held against the plaintiff
Wright on his allegations, and entered judgment sustaining
the deed by determining that Wright has no right, title or
interest in the property described in the deed except for the
life interest in income from the minerals. From that
judgment, Wright appeals.
The facts as found by the District Court are favorable
to Blevins. Those findings show that at the time the deed
was delivered, John L. Wright and Larry P. Blevins were the
owners of the deeded property as tenants in common. The
r a n c h was o r i g i n a l l y known a s t h e B l e v i n s r a n c h , h a v i n g been
developed by Lee B l e v i n s , an uncle of Larry. John L.
Wright's deceased wife, E d i t h Wright, and B i l l B l e v i n s were
s i s t e r and b r o t h e r of Lee B l e v i n s . I n 1955, p r i o r t o h i s
d e a t h , Lee B l e v i n s deeded t o John L . Wright and B i l l B l e v i n s
( I , a r r y l s f a t h e r ) 2600 a c r e s of l a n d a s t e n a n t s i n common i n
which Lee Blevins had owned a 100 percent interest. In
a d d i t i o n , he conveyed a 50 p e r c e n t i n t e r e s t i n a n o t h e r 1800
a c r e s of l a n d t o John Wright and B i l l B l e v i n s , a s t e n a n t s i n
common. I n 1964, John Wright and B i l l B l e v i n s bought t h e
o t h e r one-half i n t e r e s t i n t h e o t h e r 1800 a c r e s from P r i n c e
Anderson. John Wright received another 640 acres by
d i s t r i b u t i o n of t h e e s t a t e of h i s w i f e , E d i t h Wright B l e v i n s .
When Lee B l e v i n s made t h e g i f t s of the l a n d t o John
Wright and B i l l B l e v i n s i n 1955, h e t o l d them t o deed t h e
l a n d o v e r t o L a r r y B l e v i n s "when t h e y were done w i t h i t . " In
1979, b e f o r e h i s d e a t h , B i l l B l e v i n s , t h e f a t h e r of L a r r y , by
deeds prepared in the law o f f i c e s o f Gene Theroux, deeded
over t o h i s son, Larry, h i s i n t e r e s t i n t h e L e e Blevins land.
A t t h a t t i m e , John Wright was a l s o asked t o deed o v e r t h e Lee
B l e v i n s l a n d and t h e E d i t h B l e v i n s l a n d t o L a r r y , b u t John
d e c l i n e d , s t a t i n g t h a t h e s t i l l had some u s e f o r i t .
For some y e a r s p r i o r t o December 1982, L a r r y B l e v i n s was
a member o f t h e U.S. Army b u t would spend t i m e on l e a v e a t
t h e r a n c h and a t h i s f a t h e r ' s home i n Wolf P o i n t , Montana,
prior to l e a v i n g t h e Army. In July 1982, plaintiff John
Wright came t o s e e t h e d e f e n d a n t , B l e v i n s . Wright informed
B l e v i n s t h a t he would talce c a r e o f d e e d i n g t h e l a n d t o him.
John Wright s t a y e d w i t h L a r r y B l e v i n s t h a t n i g h t . T h a t same
a f t e r n o o n , L a r r y B l e v i n s c a l l e d t h e l a w y e r , Gene Theroux i n
Wolf Point, Montana, and asked him to prepare the deeds,
transferring the land from John Wright to Larry Blevins.
At that time, there was added, at the request of Wright,
the reservation of the minerals income to John Wright for his
lifetime and that reservation was typed in prior to the
execution of the deed. John Wright signed the deed, and in
the office of Theroux received from Blevins the sum of $1.00
although Wright stated that such consideration was not
necessary. The actual signing of the deed took place on July
13, 1982. The deed was subsequently recorded.
In the first part of August 1982, Wright did sell the
lands that he did not wish to convey to Larry Blevins. The
sale was made to other parties.
The court further found that in October 1982, Wright
informed Eleanor Schmeltzer, a long-time friend that he had
known for over 60 years, that he had deeded his interest in
the Blevins land to Larry because he was through with the
land.
The court also found that although Wright alleged that
he thought he was signing a lease in the land instead of a
deed, and that they had previously discussed a lease, Wright
was nevertheless unable to testify as to what the terms of
the lease were to be with the exception that at one time he
stated that the lease was to be for two years. At another
time in the trial he did not know the terms of the lease and
said that the rent would be a share of the cattle in
accordance with the months of use, but nothing more specific
than that.
The court also found that Wright consistently stated
that when he was through with the land it was his intention
that he would deed his share of the land to Larry Blevins.
The issues raised by Wright on appeal are: 1) that the
District Court erred in failing to void the transfer of real
property to Blevins; and 2) that the findings of fact and
conclusions of law are not supported by the evidence.
The disputes of fact that relate to the claim of fraud,
and to the claim of insufficiency of the evidence to support
the District Court judgment are intertwined. Therefore, we
will discuss the facts claimed by Wright to support his
allegations for the purpose of both issues.
Wright testified that he was called by Blevins who said
he needed Wright in Wolf Point to sign a lease agreement.
Wright testified that he was living on Social Security and
interest proceeds from savings that were being depleted, and
that he could not handle the property without hired help
because of the expense. Wright contended that he was not
through with the property, that he still had use for it.
Wright further contends that even under Blevins'
testimony, Wright was intoxicated when he met with Blevins,
and that they had visited two bars in the morning before
going to the attorney's office for the signing. Moreover,
Wright testified that he was hard of hearing, and unable to
understand what was going on because of that disability. He
therefore claims that without benefit of his attorney being
present, being aged, intoxicated, and extremely hard of
hearing, he signed a warranty deed conveying not only his
interest in the property but that also of Larry Blevins to
Blevins when he thought he was executing a lease. He was
under the impression that he was leasing the property for a
period of 2 years. Wright stated that he did not review or
read the instrument before he signed it, relying on Blevins'
representation that he was signing a lease agreement.
Afterwards, he assigned grazing rights to federal lands
under leases that were a part of the ranch to Neula Gribble,
and told her husband, John Gribble that he had leased the
other property to Blevins.
Offsetting the testimony of Wright is that of Blevins
and the Attorney Gene Theroux. By their testimony, the deed
was inspected by Wright who wa.nted to make sure that the land
owned by him individually was not included in the deed to
Larry Blevins, which land he stated he never promised to
Larry Blevins. He intended to sell the separate land of
approximately 3000 acres. Wright did not appear to be
drinking or confused, nor did there appear to be any pressure
on him. The description of the deed was read by Wright and
by the attorney. At that time, at the request of Wright, a
reservation of the mineral income to Wright for his lifetime
was typed in the d.eed prior to its execution. John Wright
signed the deed in the presence of the attorney and Blevins.
The deed recited the payment of $1.00 as consideration, and
Wright received from Blevins the sum of $1.00 in Theroux's
office although the plaintiff stated that such consideration
was not necessary. The actual signing of the deed took place
on July 13, 1982.
On August 4, 1982, Wright did sell the separate Lands to
third parties.
It was Wright's contention throughout the trial that
when he no longer had use for the land, he would deed the
land to Blevins.
It is clear that the law in this state, stated by us
many times, in cases tried to the court without a jury, the
credibility of witnesses is for the District Court to decide,
and in the absence of an abuse of discretion, the District
Court's findings of fact which resolve contested issues of
fact will not be set aside by us unless clearly erroneous.
Rule 52 (a), M.R.Civ.P.
The findings of fact made by the District Court are
clearly supported in the evidence, and far from being clearly
erroneous, appear proper in the light of the circumstances
under which Wright acquired the lands.
Moreover, the District Court's findings negate any
possibility of holding for Wright on the grounds of fraud.
In order to establish fraud, the same elements must be
established in a trial before a judge as in a jury trial.
Young v. Handrow (1968), 151 Mont. 310, 316, 443 P.2d 9, 12.
Actual fraud based on misrepresentation requires proof of the
representation, its falsity, its materiality, the speaker's
knowledge of its falsity, or his ignorance of its truth, the
speaker's intent that it should be acted upon by the person
and in the manner reasonably contemplated, the hearer's
ignorance of its falsity, the hearer's reliance upon its
truth, the hearer's right to rely thereon, the hearer's
consequent injury. Wortman v. Griff (Mont. 1982), 651 P.2d
998, 1000, 39 St.Rep. 1916, 1918; Cowan v. Westland Realty
Company (1973), 162 Mont. 379, 383, 512 P.2d 714, 716; Clough
v. Jackson (1971), 156 Mont. 272, 279, 280, 479 P.2d 266,
270; Hutton v. Ming (1970), 155 Mont. 149, 153, 467 P.2d 688,
690. Fraud can never be presumed but must be proved.
Section 28-2-404, MCA; Poulsen v. Treasure State Industries,
Inc. (Mont. 1981), 626 P.2d 822, 825, 38 St.Rep. 218, 221.
Proof of fraud must he by a preponderance of the evidence,
C0wa.n17. Westland Realty Company, supra.
The District Court did not find that Larry Elevins had
been guilty of any deceit or false representation as to the
contents of the deed so as to put Wright off guard. In such
case the rule of law announced by this Court in Hjermstad v.
Rarkuloo (1954), 128 Mont. 88, 270 P.2d 1112, applies. A
party will not be relieved, either by a court of law or a
court of equity, where he executes an instrument without
reading it, when he has it in his hands and negligently fails
to ascertain the contents of it and the other party is not
guilty of any deceit or false representation as to its
contents. Hjermstad, supra.
Wright also contends, however, that the warranty deed in
this case should be voided because the real property in this
case had an approximate value of $300,000 to $600,000 and the
consideration recited in the deed and proved to have been
given was the sum of $1.00. Wright contends that under
section 26-1-602(38), MCA, the recitation in a deed or
contract that there was "good and sufficient consideration"
is a disputable presumption. Wright relies on Baker National
Bank v. Lestar (1969), 153 Mont. 45, 453 P.2d 774, and White
v. Nollmeyer (1968), 151 Mont. 387, 443 P.2d 873, to the
effect that fair consideration is necessary. In White v.
I\lollmeyer, supra, we said that the test to be applied was
whether the disparity between the true value of the property
transfer and the price paid is so great as to shock the
conscience with the conviction that the transfer could never
have been made in good faith. The District Court, however,
found that in making the deed in this case, Wright had the
intention of making a donative transfer in addition to
receiving the $1.00 consideration. Wright objects to this
finding of the court, stating that a finding that there is
sufficient consideration for a deed is not compatibl-e with
finding an intention to make a gift, which would require no
consideration.
We cannot ignore, however, that Wright received the land
originally as a tenant in common with Bill Blevins, the
father of Larry Blevins, and under the stipulation or
condition that they deed the lands to Larry "when they were
done with it." The performance of this condition by Wright
was characterized by the District Court as an act of donative
intent, but regardless, whether looked at as a gift, or as a
performance of a condition, this coupled with the payment of
$1.00 constituted fair and adequate consideration in this
case.
There was a side issue to which we attach no relevance,
in that after the transfer by deed, Larry Blevins and his
wife petitioned to be appointed guardians of Wright by reason
of his chronic alcoholism. The guardianship was eventually
dissolved by the District Court on the ground that Wright was
capable of managing his own affairs. The point which Wright
attempts to make is that at the time of the transfer of the
deed Blevins contends that Wright was not intoxicated, but
some months later he attempted to be appointed Wright's
guardian on the grounds of Wright's chronic alcoholism. The
circumstances of the guardianship do not prove or disprove
any fact at issue in connection with the issues of the
warranty deed, and we attach no importance to it.
The judgment of the District Court is affirmed.
- --"\,
We Concur:
P