No. 93-539
IN THE SUPREME COURT OF THE STATE OF MONTANA
ROCKY MOUNTAIN TIMBERLANDS, INC.
a Montana Corporation,
Plaintiff and Appellant,
BETTY T. LUND, as County Clerk
and Recorder of Ravalli County,
Montana,
Defendant and Respondent.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John J. Jardine, Jardine & Fehlig, Whitehall,
Montana; Patrick Dougherty, Worden, Thane & Haines,
Missoula, Montana
For Respondent:
George H. Corn, Ravalli County Attorney, Gerald D.
Williams, Deputy County Attorney, Hamilton, Montana
Submitted on Briefs: April 7, 1994
Decided: July 12, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a denial of writ of mandamus by the
Twenty-First Judicial District Court, Ravalli County. We affirm.
We consider the following issues on appeal:
I. Did the District Court err in determining that a landowner
cannot legally divide a large parcel of land into smaller parcels
by executing a deed in which the grantor and the grantee are the
same party?
11. Did the District Court err by determining that the Clerk and
Recorder properly refused to record the deed in question and,
therefore, a writ of mandamus was not appropriate?
The facts of this case are not disputed. Rocky Mountain
Timberlands, Inc. (RMT) is a Montana corporation located in
Bozeman. It is engaged in the acquisition and subdivision of
Montana land which is then marketed nationwide.
RMT bought several large tracts of land totalling 580 acres in
rural Montana, located about one mile east of the town of
Stevensville in Ravalli County. On February 25, 1993, RMT tendered
27 quitclaim deeds to the Ravalli County Clerk and Recorder, Betty
T. Lund. The 27 deeds were all similar and had RMT listed as both
grantor and grantee on each one. The deeds purport to quitclaim a
1/32nd part of a government section (a 20-acre tract) of the
aforementioned 580 acres of land purchased by RMT. Included in the
27 deeds recorded on February 25, 1993, was a deed describing the
S1/2,NW1/4,SE1/4 of Section 22, Township 9 North, Range 19 West,
P.M.M. (20 acres) as an unsegregated part of the SE1/4 of Section
22.
Following her filing of these 27 deeds, the Clerk sought a
legal opinion from the county attorney on the advisability of
recording these 27 deeds in which the grantor and grantee were the
same entity. The county attorney advised the Clerk that, in his
opinion, these deeds were ineffective to pass property and, in
essence, were void instruments unless the deeds had modified the
nature of the interests held by the grantor and grantee.
On April 6, 1993, the legislature changed certain definitions
within the statutes pertainingto the Subdivision and Platting Act.
The amendments, Chapter 272, Laws of Montana, 1993, define
"subdi~ision'~ "a division of land or land so divided which
as
creates one or more parcels containing less than 160 acres. . .
I,
This new limit of 160 acres within this definition effectively
means that a plat must be filed of record before title to
subdivided ground--any piece smaller than the 160 acres--can be
sold or transferred. The prior statutory limit was 20 acres.
On April 20, 1993, fourteen days after the new amendments to
the Act went into effect, RMT made a deed conveying the
S1/2,NW1/4,SE1/4 of Section 22, T9N, R19W, to John Jardine. RMT
attempted to have the deed recorded on April 22, 1993, but the
Clerk refused to accept it on the basis that it was not in
compliance with the 1993 Legislature's changes to the Montana
Subdivision and Platting Act (the Act), 5576-3-101, et.seq., M.C.A.
The Clerk took the position that because the underlying 20-acre
deed purporting to convey the segregated parcel to RMT did not meet
the requirements of the Act, any subsequent deed purporting to
convey the parcel would first have to fall into compliance with the
Act. Thus, because the 20 acre tract had not been surveyed, it
could not be recorded.
On May 24, 1993, RMT petitioned the Ravalli County District
Court for a Writ of Mandamus directed to the County Clerk. The
Clerk appeared before the District Court on June 17, 1993, and
contested the Writ. The parties stipulated to the facts of the
case and submitted the case to the court on August 12, 1993,
without a hearing.
The court issued its Memorandum and Judgment on August 27,
1993, concluding that RMT's prior 27 quitclaim deeds to itself were
void and inoperative for any purpose whatsoever, including the
division of RMT1s lands into 20-acre parcels, and that RMT's
subsequent warranty deed failed to comply with Montana's
Subdivision Act as amended by the 1993 Legislature.
The District Court quashed, vacated, and set aside the Writ of
Mandamus and affirmed the Clerk's refusal to record RMT's
subsequent warranty deed. RMT appeals the August 27, 1993 judgment
of the District Court.
Standard of Review
Both issues which we here review concern matters of legal
interpretation. We review the district courts' legal
interpretations as to whether they are correct. Steer Inc. v.
Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
I.
Did the District Court err in determining that a landowner
cannot legally divide a large parcel of land into smaller parcels
by executing a deed in which the grantor and the grantee are the
same party?
Appellant argues that the common law rule prohibiting the
grantor and grantee of a land conveyance from being the same person
is not followed in Montana because the legislature has made
conveyancing subject to statutes. The appellant further argues
that our statutes do not forbid the grantor and grantee being the
same person. According to appellant, Montana has eliminated the
requirement that the grantor and grantee in any land conveyance
must be different persons, refusing to require a strawma man^' in
situations where land is conveyed by one person to himself or
herself.
Respondents argue that the conveyancing law in Montana is
statutory and the statutes do not abrogate the common law but
incorporate it by reference. The District Court pointed out that
the English common law held that a man cannot make a conveyance to
himself. In further considering this aspect, the District Court
determined that the cases involving establishment or severance of
a joint tenancy are not applicable because a joint tenancy involves
a conveyance of a different, or lesser, estate than the original
one.
We do not consider common law concerning joint tenants because
resolution of this issue pivots on purely statutory grounds. "The
statutes establish the law of this state. . ." Section 1-2-103,
MCA. It is undisputed, here, that F34T1swhole purpose in recording
the 27 deeds was to divide its 580 acre tract into smaller parcels
minimally large enough to avoid the survey and platting
requirements of the Subdivision and Platting Act then in effect.
The Montana Subdivision and Platting Act in effect at the time of
the original filing of the 27 alleged deeds is specific as to the
ways in which land in this state can be divided:
(3) "Division of landn means the segregation of one or
more parcels of land from a larger tract held in single
or undivided ownership by transferring or contracting to
transfer title to or possession of a portion of the tract
or properly filing a certificate of survey or subdivision
plat establishing the identity of the segregated parcels
pursuant to this chapter. (Emphasis added.)
Section 76-3-103 (3), MCA (1991) .
Since 1895, the word "transfer" in connection with any
conveyance of real property has been defined by Montana statute as
follows:
Transfer defined. Transfer is an act of the parties or
of the law by which the title to property is conveyed
from one livins person to another. (Emphasis added.)
Section 70-1-501, MCA (1991). Under the statute, a "transfer" of
land requires a conveyance of title from one person to another. If
the persons are the same, then a "transfer" does not occur. If
there is no then there is no division of land under S
76-3-103 (3), MCA.
We affirm the holding of the District Court that a landowner
cannot divide a large parcel of land into smaller parcels by
executing a deed in which the grantor and grantee are the same
party.
11.
Did the District Court err by determining that the Clerk and
Recorder properly refused to record the deed in question and,
therefore, a writ of mandamus was not appropriate?
Appellant argues that the Clerk and Recorder had no discretion
in recording the deed. According to appellant, the Clerk was under
a statutory duty to record the deed so long as its fee was paid and
it met statutory requirements.
Respondent contends that the Clerk was under a legal duty not
to accept an improper deed.
The District Court found that the Clerk and Recorder had no
mandatory duty to record every document presented to her office
that is labeled a ttdeed.ttClerks are required only to record
documents "authorized by law to be recorded. Section 7-4-2617 (I),
MCA. The court determined that the legislative intent behind the
statutes concerning the Clerk and Recorderst duties is that
judgments without affect on the title of or possession of real
property are not necessarily recordable. Section 70-21-201(1),
MCA. According to the court, the entire recording system is built
upon the notion of notice of ownership to property. Therefore, it
serves no purpose to have a Clerk record an erroneous deed because
such action projects wrong information. A Clerk may refuse to
record a deed if the Clerk has legal justification to do so. We
agree.
The statute that covers the general procedures of the Clerk
and Recorder to record documents states in part:
Procedure to record documents. (1) When any instrument,
paper, or notice authorized by law to be recorded is
deposited for record in the office of the county clerk,
as ex officio recorder, and accompanied by the required
fee, he endorse upon the same the time it was
received, noting the year, month, day, hour, and minute
of its reception, and the reception of the instrument
must be immediately entered in the county clerk and
recorder's reception book. (Emphasis added.)
Section 7-4-2617(1), MCA. This statute puts a caveat onto the
mandatory duty of a clerk: the paper filed must be authorized by
law. When a paper is not authorized by law, the statute does not
hold the clerk to the requirement.
This interpretation is borne out by a more specific directive
within the Montana Subdivision and Platting Act concerning clerks
and recorders:
Restrictions on recording instruments relating to land
subject to surveying requirements. (1) Except as
provided in the subsection ( Z ) , the county clerk and
recorder of any county may not record any instrument
which purports to transfer title to or possession of a
parcel or tract of land which is required to be surveyed
by this chapter unless the required certificate of survey
or subdivision plat has been filed with the clerk and
recorder and the instrument of transfer describes the
parcel or tract by reference to the filed certificate or
plat.
Section 76-3-302(1), MCA. We have interpreted this statute to mean
that the clerk and recorder has a mandatory duty not to accept and
record an otherwise proper deed if it fails to comply with the
survey requirement. Huttinga v. Pringle (1983), 205 Mont. 482, 668
P.2d 1068. This clerk responsibility is in line with the general
purpose of the Act in regulating subdivisions on a local level.
Section 76-3-102, MCA.
A former case presents the situation in which a smaller parcel
of land had been segregated from the original tract and consisted
of acreage less than the then required limit for suspension of a
survey. See McDonald v. Jones (1993), 258 Mont. 211, 852 P.2d 588.
The Clerk in McDonald did record the deed without having the
statutorily required plat filed of record. We determined that the
Clerk should not have recorded the deed because it did not have a
plat filed of record and thus did not meet the requirements of the
Act. McDonald, 252 Mont. at 215, 858 P.2d at 591.
In the present case, the Clerk recorded the original 27 deeds
and then sought an answer to her question concerning whether such
deeds were valid. Upon discovering that they were not valid and
that the 27 pieces of paper alleged to be deeds had no effect at
all, the Clerk subsequently refused to accept for filing and record
the ensuing 20-acre deed because she did not have a statutorily
required plat filed of record as required by the Act. The statute
in effect at the time of the attempted transfer of the 20-acre deed
required that any piece of property less than 160 acres must have
a plat or survey filed of record before the clerk was "required" to
record the deed. The Clerk properly refused to record the 20-acre
deed because the original 27 deeds from RMT to RMT had no effect
and thus, the ensuing 20-acre deed to Jardine was invalid.
We hold that the District Court did not err by determining
that the Clerk and Recorder properly refused to record the deed in
question.
We further hold that because the Clerk performed her official
duties properly, the court did not err in refusing to issue a writ
of mandamus. Section 27-26-102, MCA.
Af finned.
We Concur: /--7
July 12, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John J. Jardiie, Esq.
JARDINE & FEHLIG
P.O. Box 488
Whitehall, MT 59759
Patrick Dougherty, Esq.
WORDEN, THANE & HAINES, P.C.
P.O. Box 4747
Missoula, MT 59806
George H. Corn, County Attorney
Gerald D. Williams, Deputy Attorney
Courthouse Box 5008
Hamilton, MT 59840
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA