NO. 92-422
IN THE SUPREME COURT OF THE STATE OF MONTANA
LEE MCDONALD,
Plaintiff and Appellant,
v.
IRENE H. JONES, a/k/a IRENE H. PETERSON,
IRENE H. JONES PARTNERSHIP, a/k/a IRENE H.
PETERSON PARTNERSHIP; OWNERSHIP OF AMERICA, F
a Texas corporation, and all other persons
unknown claiming or who might claim any right,
title, estate or interest in or lien or
encumbrance upon the real property described
in the Complaint adverse to Plaintiff's
ownership or any cloud upon Plaintiff's title
thereto, whether such claim or possible claim
be present or contingent,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Nancy K . Moe, Ellingson & Moe,
Missoula, Montana
For Respondent:
David L. Pengelly, Knight, Maclay & Masar,
Missoula, Montana
Submitted on Briefs: January 28, 1993
Decided: May 11, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Lee McDonald appeals from an order of the Fourth
Judicial District Court, Missoula County, granting summary judgment
and finding a certain warranty deed from respondent Irene H. Jones
(now I r e n e Peterson but referred to as Jones) to Ownership of
America void, and a certain tax deed issued to McDonald by Missoula
County void. McDonald also appeals a subsequent order denying his
motion to reconsider.
We affirm.
McDonald raises three issues on appeal. We find the following
issue to be dispositive:
Did the District Court err in finding that the grantor did not
comply with the Montana Subdivision and Platting Act, thereby
invalidating the warranty deed?
Irene H . Jones owned 12.63 acres of land in the Seeley Swan
valley. The land contained various improvements, including a house
built by Jones. Ownership of America approached Jones and
requested that she convey two undeveloped acres from the 12 acre
tract for a promotional scheme in exchange for some of Ownershiprs
stock. There was no agreement specifying which two acres were to
be conveyed. A friend of Jones, Vernon H. Peterson, prepared a
warranty deed conveying title. On April 13, 1981, Jones executed
a warranty deed to Ownership. The deed contained the following
land description:
That portion of Lot numbered Seven (7) of Section Six (6)
in Township Twenty (20) North of Range Sixteen (16) West
of Montana principal ~eridian,Montana, lying West of
Federal Aid Secondary 209 right-of-way and containingtwo
acres more or less and further accurately described by
plat on file with the party of the first part and party
of the second part. Party of the first part herein
reserves all minerals under the above description.
Jones and Ownership agree that the deed intended to convey two
undeveloped acres out of the larger 22.63 acres owned by Jones.
However, the deed did not specify which two undeveloped acres were
to be conveyed. No plat was ever filed with the Missoula County
Clerk and Recorder. The Missoula County Clerk and Recorder's
office, following internal office procedures, erroneously treated
the conveyance as a transfer of 12.63 acres, and not as two acres,
as intended by Jones and Ownership. The Missoula County Treasurer
changed the tax records upon recordation of the deed and sent all
further tax notices for the entire 12.63 acre parcel to Ownership,
who failed to pay any of the real property taxes. On July 20,
1983, Missoula County took a tax sale certificate on the entire
12.63 acre parcel due to nonpayment of taxes. Jones never received
any notice regarding the pending tax sale.
On August 13, 1985, prior to taking a tax deed to the 12.63
acres, Missoula County assigned its interest in the tax certificate
to Lee McDonald for $738.92, which represented unpaid taxes,
interest, and penalties. On April 28, 1986, and on May 5, 1986,
McDonald published a notice of application for tax deed in the
local newspaper. The notice contained the following legal
description: !#All of Gov't Lot 7 lying West of Federal Aid
Secondary #209 R/W in SW4 (Plat E) of 6-20N-16W, M.P.M." On
July 11, 1986, McDonald filed an affidavit stating that the
property was unoccupied at the time of his application for tax deed
on the property but acknowledged that the property may be occupied
occasionally during the summer.
On August 27, 1986, the Missoula County Treasurer executed a
tax deed to McDonald as grantee, which contained the following
legal description:
Book 163 Page 228 S U I D #1078409
Pt of Lot T W of R/W in SW4 Plat E Section 6
own ship 20 Range 16 12.63 Acres
That portion of lot numbered Seven (7) of Section Six (6)
in Township Twenty (20) North of Range Sixteen (16) West
of Montana Principal Meridian, Montana, lying West of
Federal Aid Secondary 209 Right-of-way and containingtwo
acres more or less and further accurately described by
Plat on file with the party of the first part and party
of the second part. Party of the first part herein
reserves all minerals under the above description.
McDonald then published a Notice of Claim of Tax Title in the
Missoula newspaper on August 25, 1986, and again on ~eptember1,
1986. The legal description used in the publication is identical
to the legal description used in the original notice of application
for tax deed.
McDonald never visually inspectedthe premises to determine if
the property was unoccupied before acquiring the t a x deed; he did
not attempt to notify personally any persons who may have been
occupying the property during the summer of 1986; he did not
attempt to contact anyone other than a local handyman to determine
who was in possession of the property and who was allowing guests
to enter the property.
Ownership contacted McDonald and agreed to give him a quit
claim deed to the property. The quit claim deed was prepared by
McDonald and contained a different legal description than that used
in the warranty deed from Jones to Ownership. The deed deleted all
reference to the two acre limitation contained in the warranty
deed. In addition, the word llallll inserted at the beginning of
was
the legal description. McDonald had actual knowledge of the two
acre limitation contained in the Jones-to-Ownership warranty deed,
but he chose to ignore the limitation. McDonald did not pay any
consideration to Ownership for the quit claim deed. McDonald then
conveyed a separate piece of property to Ownership for $2000.
In a series of deeds that were executed after the deed to
Ownership, Jones, now married to Vernon Peterson, conveyed her
entire interest in the 12.63 acre parcel to Irene H. Peterson
Limited Partnership, a North Dakota limited partnership. Jones has
paid all of the real estate taxes on the entire 12.63 acre parcel
from 1986 through 1990 and has been in possession of the property
at all times throughout the litigation.
On September 13, 1988, McDonald filed a quiet title action in
District Court. On January 22, 1992, Jones filed her motion for
summary judgment. On April 27, 1992, the District Court issued its
findings of fact, conclusions of law, and order granting Jones'
motion for summary judgment. On May 14, 1992, McDonald filed a
motion for reconsideration, which was denied by the District Court
on June 15, 1992. McDonald appeals both orders to this Court.
Did the District Court err in finding that the grantor did not
comply with the Montana Subdivision and Platting Act, thereby
invalidating the warranty deed?
The granting of summary judgment is proper only if it is shown
that there is no genuine issue of any material fact and that the
moving party is entitled to summary judgment as a matter of law.
Rule 56(c), M.R.Civ.P. Summary judgment may be granted where the
party opposing the motion fails to prove the existence of any
genuine issue of material fact. Bills v. Hannah, Inc. (1988), 230
Mont. 250, 253-54, 749 P.2d 1076, 1079.
Section 76-3-104, MCA (1979), states that a subdivision shall
be comprised of parcels less than 20 acres which have been
segregated from the original tract. Jones' warranty deed to
Ownership was an attempt to subdivide a parcel of land by
segregating a two-acre parcel from the original 12.63 acre tract.
The attempted subdivision violated the Montana Subdivision and
Platting Act because the Act requires that a plat be filed of
record before title to subdivided ground can be sold or transferred
in any manner. Section 76-3-301(1) , MCA (1979). In addition, the
Act requires that the clerk and recorder reject any instrument that
purports to transfer title to a parcel that is required to be
surveyed. Section 76-3-302, MCA (1979).
The record shows that the parties intended to transfer only
two acres of undeveloped land out of the 12.63 acres of land. No
plat was recorded describing the two acres, even though the deed
did make a reference to such a plat. The deed should have been
rejected. Section 76-3-302, MCA.
When interpreting the validity of deeds, the general rule is
that a deed will be liberally construed to give it effect, rather
than to render it a nullity. Peterson v. Taylor (1987), 226 Mont .
400, 404, 735 P.2d 1120, 1123. A deed will be considered void for
uncertainty if the identity of the property can not be ascertained
by reference to extrinsic evidence. Peterson, 735 P.2d at 1123.
We consider the property description contained in a deed adequate
if it contains sufficient information to permit the identification
of the property to the exclusion of all others. Peterson, 735 P.2d
at 1123.
In this instance, the parties failed to come to a meeting of
the minds regarding which two acres of land Jones was to convey to
Ownership. No extrinsic evidence was available for the District
Court to identify which two acres the parties contemplated to be
conveyed. Therefore, we hold that the deed was void for
uncertainty, Because the warranty deed was ineffective at
conveying any portion of the 12.63 acres, the subsequent deed from
Ownership to McDonald conveyed no interest in the property.
Erickson v . First National Bank of Minneapolis (1985), 215 Mont.
350, 358, 697 P.2d 1332, 1337. We hold that the ~istrictCourt was
correct as a court sitting in equity in holding that the original
conveyance between Jones and Ownership was void for failure to
comply with the Montana Subdivision and Platting Act.
As a result of our holding, we need not address the additional
issues raised by McDonald.
Because there is no genuine issue of material fact, we affirm
the decision of the District Court in granting summary judgment as
a matter of law in favor of Jones.
Justice
We concur:
I
May 11, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Nancy K. Moe
Ellingson & Moe
P.O. Box 9198
Missoula, MT 59807
David L. Pengelly
Knight, Maclay & Masar
P.O. Box 8957
Missoula, MT 59807
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF, MONTAN4