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, Montana
Submitted on Briefs: January 18, 1996
Decided: February 22, 1996,
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of this Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company.
Appellant, Tressie Daugherty appeals the judgment of the Tenth
Judicial District Court of Fergus County, granting the plaintiff
and respondent, John P. Daugherty, a declaratory judgment
establishing his present interest in certain real property.
We affirm.
The sole issue presented for our review is whether the
District Court erred in finding that Tressie Daugherty (Tressie)
had delivered the deed to the Spring Creek property to her son John
Daugherty (John).
FACTS
In September 1975, Tressie and her husband Paul (now deceased)
purchased a house in Lewistown, Montana, located on Spring Creek
Road, (Spring Creek property). In October of the same year, the
deed was properly recorded. Tressie and Paul's son, John, worked
road construction and moved into the residence in 1976 with his
parents' permission. John lived there for about six months out of
the year during the off-season, until 1993. Tressie moved into the
house in either 1979 or 1980, and was joined shortly thereafter by
Paul.
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On May 12, 1982, Tressie and Paul executed a deed transferring
the Spring Creek property to Tressie, Paul, and John as joint
tenants with rights of survivorship. The warranty deed was then
properly recorded. About four to six weeks later, Paul told John
about the deed and its recording. At trial, Tressie testified that
she believed the effect of the 1982 deed was only to transfer
ownership of the Spring Creek property to John upon the death of
both she and Paul. She testified that she did not believe the deed
granted John a present ownership interest. John testified that he
believed he held a joint interest in the property but, that he
would not have complete ownership until after both of his parents
were deceased.
From 1982 through 1992, Tressie, Paul, and John all lived in
the house and worked together on improving the property. Paul
Daugherty died in November 1992. After which, John and Tressie
continued to live in the house.
After Paul's death, Tressie and John became the owners as
surviving joint tenants. In 1993, a dispute arose between Tressie
and John regarding what John considered to be an invasion of his
privacy. During this time, Tressie contacted legal counsel to see
if she could remove John's name from the deed and evict him from
the premises. John moved out voluntarily.
In March 1994, Tressie presented John with a deed, and asked
him to quit claim his interest in the Spring Creek property. John
refused. John brought suit against his mother under the Uniform
Declaratory Judgment Act, 55 27-s-101, et. seq., to determine the
validity of a recorded warranty deed. A bench trial was held on
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March 2, 1995, after which a judgment was entered declaring the
deed to be valid, and that John presently held a joint interest
with his mother in the. Spring Creek property with rights of
survivorship. Tressie appeals.
DISCUSSION
Whether the District Court erred in finding that Tressie had
delivered the deed to the Spring Creek property to her son John?
The standard of review for a district court's findings of fact
is whether the findings are "clearly erroneous. 'I Interstate
Production Credit Association v. DeSaye (1991), 250 Mont. 320, 323,
820 P.Zd 1285, 1287. We review a district court's conclusions of
law to determine whether the court's interpretation of the law is
correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870
P.2d 91, 93.
At trial and on appeal, it has been Tressie's position that it
was neither her nor her husband's intent to give John a present
interest in the Spring Creek property when they executed the May
12, 1982 deed. Absent their intent to grant John a present
interest, Tressie contends the deed was in effect never delivered.
A grant of property takes effect only upon delivery by the
grantor. Section 70-l-508, MCA; Romain v. Earl Schwartz Co.
(1989), 238 Mont. 500, 503, 779 P.2d 54, 55-56. Delivery can be
accomplished by words, acts, or both. In Montana, the law does not
require the actual handing over of the document so long as it is
handled in a way that unequivocally shows the grantor's intention.
Hauseman v. Koski (1993); 259 Mont. 498, 502, 857 P.2d 715, 717.
Accordingly, the intent to pass a present interest in property is
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an essential element of delivery. Gross V. Gross (1989), 239 Mont.
480, 781 P.2d 284; Bodine v. Bodine (1967), 149 Mont. 29, 422 P.2d
650; Roth v. Palutzke (19601, 137 Mont. 77, 350 P.2d 358;
Cleveland-Arvin v. Cleveland (1950), 123 Mont. 463, 215 P.2d 963.
A presumption of delivery is created when a deed has been duly
executed and acknowledged, and the presumption is strengthened by
the recording of the deed. -,
Roth 350 P.2d at 360. When a deed has
been properly recorded the presumption of delivery can only be
overcome by "clear and convincing evidence." Gross, 781 P.2d at
285.
In the Gross case, the father executed and recorded three
warranty deeds transferring real property from the father to the
father and the son as joint tenants. The father retained the deeds
in his possession, and continued to occupy and maintain the land.
After executing and recording the deeds, the father told the son
that he had placed his name on the property as a joint tenant.
Later, when the father asked the son to reconvey the property, the
son refused. This Court held that the father, even though he
remained in control of both the documents and the deeded land, had
not overcome the presumption of delivery raised by recording.
Gross, 781 P.2d at 286.
On appeal, Tressie argues Gross is distinguishable. Tressie
contends there is ample evidence to overcome the presumption raised
by the 1982 recording of the deed. In a memorandum supporting its
judgment, the District Court reviewed the facts in Gross. The
court found that in comparison to the Gross case, the instant case
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presented a more compelling argument for the presumption of
delivery.
The District Court found Tressie's statements regarding her
lack of understanding of the effect of the deed were not clear and
convincing. A grantor's self serving statements are not enough to
overcome the presumption of delivery. Gross, 781 P.2d at 286. And
although Tressie retained possession of the deed and continued to
occupy and control the land, the court found this did not rebut the
presumption of delivery. This Court has held that evidence of
particular subsequent acts is not sufficient to rebut the
presumption when a close relationship exists between the grantor
and grantee. Gross, 781 P.2d at 286; Roth
-r 350 P.2d at 360.
We agree with the District Court. The instant case presents
a stronger argument for the presumption of delivery. Unlike the
parties in the Gross case, Tressie and John exercised joint
dominion and control over the Spring Creek property for eleven
years prior to the dispute.
We hold the District Court's findings were not clearly
erroneous, and the court's interpretation of the law was correct.
The May 12, 1982 deed created a present interest in the property to
Tressie, Paul, and John. We affirm the District Court's grant of
a judgment for the plaintiff, John, declaring his present interest
in the Spring Creek property.
Affirmed.
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We Concur:
Justices