NO. 95-191
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
LARRY LULOFF and
JANET PERKINS-LULOFF,
Plaintiffs and Respondents,
v.
DAVID BLACKBURNand,
VELMA BLACKBURN,
i
ix,,., 1,: i'i
Defendants, Third-party Plaintiffs &-" ,i;Jj_j
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and Respondents, :,"\.*$d
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ALEX MANWEILER and
ROSIE MANWEILER,
Third-party Defendants.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K.D. Peterson, Peterson and Schofield, Billings,
Montana
For Respondent:
Frank C. Crowley, Doney, Crowley & Shontz, Helena,
Montana; Kent E. Young, Red Lodge, Montana
Submitted on Briefs: August 17, 1995
Decided: November 14, 1995
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
In July 1992, respondents Larry Luloff and Janet Perkins-
Luloff instituted proceedings in the Thirteenth Judicial District
court, Carbon County, seeking to reenter and to possess a certain
parcel of land in the possession of appellants David and Velma
Blackburn. The District Court granted the Luloffs' motion for
summary judgment and the Blackburns appeal. Alex and Rosie
Manweiler did not appeal that summary judgment.
We affirm.
Issue
The sole issue on appeal is whether the District Court erred
in granting summary judgment in favor of respondents.
Facts
The land in dispute is an approximately six acre parcel which
is part of a 600 acre ranch located near Boyd, Montana. The
appellants moved to the parcel in 1985 and made various
improvements to the land. Their residence was obvious and is
undisputed. However, no written document exists which purports to
grant to the appellants any interest whatsoever in the property in
question.
In 1989, the respondents bought the 600 acre ranch from Alex
and Rosie Manweiler (the Manweilers). At the time of the sale, the
respondents were informed by the Manweilers as well as the realtors
who handled the sale that the ranch did not include a specific six
acre parcel. In the property description attached to the contract
for deed, a 6.12 acre parcel denominated as "Tract B 'I was
specifically excluded from the ranch.
Both the Manweilers and the realtors represented to the
respondents that "Tract B", the six acre parcel which was excluded
from the ranch, was the same six acre parcel where the appellants
resided. Since the Manweilers and the realtors told them the
parcel occupied by the appellants was excluded from the ranch, the
respondents assumed the six acre parcel occupied by the appellants
was in fact "Tract B", the six acre parcel excluded from the ranch
by deed.
Therefore, the respondents knew the appellants were occupying
the land. However, due to confusion regarding where "Tract B" was
located, the respondents were unaware that they themselves owned
the parcel occupied by the appellants.
One or two years later, the respondents discovered that "Tract
B" was not the land occupied by the appellants, rather "Tract B"
was a different parcel, owned by a party named Woods. "Tract B",
owned by Woods, is adjacent to, but entirely separate from, the
land the appellants occupied.
In April and again in May of 1992, the respondents and the
Manweilers served the appellants with eviction notices requiring
them to vacate the property. Upon appellants' refusal to vacate,
the respondents filed this cause of action. Subsequently, the
District Court granted the respondents' motion for summary
judgment, finding that no material facts were in dispute and that
the respondents were entitled to judgment as a matter of law.
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Standard of Review
Summary judgment is proper when no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law. Rule 56(c), M.R.Civ.P.; Vincelette v. Metropolitan
Life Ins. Co. (1995), - P.2d -r -I 52 St.Rep. 1035, 1036;
Brown v. Demaree (1995), - P.2d -I __I 52 St.Rep. 819, 820.
This Court reviews a District Court's grant of summary judgment
using the same criteria employed by the District Court to make its
ruling. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441,
444, 872 P.2d 330, 331; Minnie v. City of Roundup (1993), 257 Mont.
429, 431, 849 P.2d 212, 214.
The party moving for summary judgment has the burden of
showing a complete absence of any genuine issue of material fact,
as well as its entitlement to judgment as a matter of law.
Vincelette, 52 St.Rep. at 1036; Toombs v. Getter Trucking, Inc.
(1993), 256 Mont. 282, 284, 846 P.2d 265, 266. All reasonable
inferences that may be drawn from the offered proof are to be drawn
in favor of the party opposing the summary judgment. First
Security Bank v. Vander Pas (1991), 250 Mont. 148, 152, 818 P.2d
384, 386.
DISCUSSION
The sole issue on appeal is whether the District Court erred
in granting summary judgment to the respondents. The appellants
claim they orally contracted with the Manweilers for the sale of
the disputed six acres in 1986, three years before the respondents
purchased the ranch. The Manweilers deny the existence of any such
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contract. The appellants contend therefore that factual questions
remain regarding whether they and the Manweilers had such an oral
agreement. They further contend legal questions also remain
regarding whether that agreement, should it be found to exist, may
escape the statute of frauds. The appellants assert that summary
judgment in favor of the respondents was erroneous in the face of
these remaining questions.
Under the statute of frauds, any sale or transfer of real
property (other than an estate at will or a lease for a term less
than one year) must be in writing and signed by the grantor.
Sections 28-2-903, 30-11-111, and 70-20-101, MCA. Generally, if a
grant of real property does not comply with the statute of frauds,
it is invalid. Isaak v. Smith (1993), 257 Mont. 176, 848 P.2d
1014; Quirin v. Weinberg (1992), 252 Mont. 386, 830 P.2d 537.
However, the appellants point out that a court has the power
to compel the specific performance of one party to an oral contract
for the sale of real property in the case of part-performance by
the other party. Section 70-20-102, MCA; Hayes v. Hartelius
(1985), 215 Mont. 391, 697 P.2d 1349. See also Nashan v. Nashan
(N.M. ~pp. i995), 894 P.2d 402; Quirin, 830 P.2d 537. Therefore,
although they concede no written contract exists, the appellants
nevertheless claim they have fully performed their part of the oral
contract and are entitled to compel specific performance from the
Manweilers. On this basis, they argue that the earlier oral
contract between them and the Manweilers should be given full force
and effect and the appellants should be allowed to keep the land.
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Contrary to the appellants' assertions, however, the District
Court did not rule on the existence or validity of an earlier
contract between the Manweilers and the appellants. Instead, the
court found the respondents' claim to the land to be superior to
any claim or right the appellants might have, because the
respondents were subsequent good faith purchasers without notice.
Section 70-21-304, MCA, provides:
Every conveyance of real property, other that a lease for
a term not exceeding 1 year, is void against any
subsequent purchaser or encumbrancer, including an
assignee of a mortgage, lease, or other conditional
estate, of the same property or any part thereof in good
faith and for a valuable consideration whose conveyance
is first duly recorded.
The appellants do not dispute that the respondents paid valuable
consideration for the land and recorded their deed first. As far
as recording, the appellants admit they have never had any color of
title to the property that they could even attempt to record.
Nevertheless, the appellants claim the respondents cannot be
considered bona fide subsequent purchasers because they did not buy
the land in good faith.
It is well established in Montana that a bona fide purchaser
is:
one who at the time of his purchase advances a new
consideration, surrenders some security, or does some
other act which leaves him in a worse position if his
purchase should be set aside, and purchases in the honest
belief that his vendor had a right to sell, without
notice, actual or constructive of any adverse rights,
claims, interest, or equities of others in and to the
property sold.
Foster v. Winstanley (1909), 39 Mont. 314, 316, 102 P. 574, 579
(citations omitted).
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The appellants point out the respondents were told by the
realtors and the Manweilers (the sellers) that the property
occupied by the appellants was not part of the ranch. The
respondents were also aware of the appellants' obvious use and
occupation of the six acre parcel. Therefore, the appellants claim
the respondents had actual and constructive notice of the
appellants' "claim of ownership" of the land, and such actual
notice means the respondents cannot be considered bona fide good
faith purchasers.
The Blackburns have confused occupation with ownership. The
respondents cannot be charged with actual or constructive notice of
the appellants' ownership of the land because the appellants do not
have, and have never had, any rights to the land beyond those
conveyed by mere occupancy.
There are two historically recognized ways to acquire
unassailable fee title to (or ownership of) real property. See,
generally, Lamme v. Dodson (1883), 4 Mont. 560, 2 P. 298. A person
may acquire title by transfer or conveyance, such as a devise from
a decedent's estate, or a gift, or a common sale. However, if a
person who claims a given piece of land has only a defective deed
or title, or no deed or title at all, that person may still
establish clear fee title through adverse possession.
If the party occupying another's land cannot show adverse
possession, the law presumes the occupancy to be permissive and
subordinate to the legal title. Section 70-19-404, MCA, states:
In every action for the recovery of real property or the
possession thereof, the person establishing a legal title
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to the property is presumed to have been possessed
thereof within the time required by law, and the
occupation of the property by any other person is deemed
to have been under and in subordination to the legal
title unless it appear that the property has been held
and possessed adversely to such legal title for 5 years
before the commencement of the action.
This presumption has been consistently applied in Montana for
more than a hundred years. "The law deems every man to be in the
legal seisin and possession of land to which he has a perfect and
complete title. This seisin and possession is co-extensive with
the right, and continues till [sic] he is ousted by an actual
adverse possession." Stephens v. Hurley (1977), 172 Mont. 269,
274, 563 P.2d 546, 549 (citation omitted). See also YA Livestock
co. v. Harkness (19941, 269 Mont. 239, 887 P.2d 1211; Holen v.
Phelps (1957), 131 Mont. 146, 308 P.2d 624; Blackfoot Land
Development Co. v. Burke (1921), 60 Mont. 544, 199 P. 685; Peters
v. Stephens (1891), 11 Mont. 115, 27 P. 403.
Under the above presumption, possession which is not adverse
can be overcome by any record owner who has acquired title to the
land by conventional means. "Occupancy for any period confers a
title sufficient against all except the state and those who have
title by prescription, accession, transfer, will, or succession."
Section 70-19-406, MCA.
In this case, the respondents acquired title by a property
transfer, including the transfer and registration of the deed.
Under § 70-19-406, MCA, therefore, the appellants' claim cannot
stand against the respondents' proven ownership.
The appellants do not have a legitimate claim to the land they
occupy because they cannot show adverse possession. Adverse
possession requires the payment of all taxes on the property in
question for the prescribed period. Section 70-19-411, MCA;
Lindey's, Inc. v. Goodover (1994), 264 Mont. 489, 872 P.2d 767;
Burlingame v. Marjerrison (1983), 204 Mont. 464, 665 P.2d 1136.
The appellants admit they have never paid the taxes on the property
they occupy, and therefore any claim by adverse possession must
fail.
Under the admitted facts of this case, the appellants have no
title to the land, other than that conveyed by mere occupancy, and
no claim to it via adverse possession. Nevertheless, they asked
the District Court to let them keep the land, because to allow
their eviction after so many years would be unfair.
As explained above, however, the two recognized ways to
acquire land are through transfer or adverse possession. The
appellants can show neither. They cite no authority which would
allow the courts to award them the property on the simple theory of
equity or fairness, and this Court has not discovered any authority
in the statutes or case law which would allow such a result.
In any case, this Court is not persuaded that ordering the
respondents to relinquish the land would in fact be an equitable
result. The respondents would lose a part of their ranch for which
they have paid valuable consideration and to which they hold clear
title. We also note that, while the appellants' occupancy was
indeed long-term, they never received a deed following the alleged
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sale of the land to them by the Manweilers. Further, they admit
they attempted to pay the taxes on the land but were not allowed to
do so. These facts should have alerted the appellants that any
title they held was defective.
The respondents have clear and uncontroverted title to the
disputed parcel. The appellants cannot show title through transfer
or through adverse possession. Any title they acquired through
mere occupation is subordinate to the respondents' record title.
For these reasons, the District Court did not err in granting
summary judgment in favor of the respondents.
Affirmed.
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