NO. 95-191 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1995 LARRYLULOFFand JANETPERKINS-LULOFF, Plaintiffs andRespondents,
v. DAVIDBLACKBURNand, VELMABLACKBURN, ix,,., i Defendants, Third-party Plaintiffs 1,:i'i andRespondents, &-" 1;:~ ,i;J j_j :," /. \.*$d

ALEXMANWEILERand ROSIEMANWEILER, Third-party Defendants.

APPEALFROM: District Court of the Thirteenth Judicial District,

In andfor the County of Carbon, TheHonorable G.ToddBaugh, Judge presiding.
COUNSELOFRECORD:

For Appellant: K.D. Peterson, Peterson and Schofield, Billings, Montana For Respondent: Frank C. Crowley, Doney, Crowley &Shontz, Helena, Montana; Kent E. Young, RedLodge, Montana

Filed: Submitted onBriefs: August 17, 1995 Decided: November 14, 1995Justice William E. Hunt, Sr. delivered the Opinion of the Court.

In July 1992, respondents Larry Luloff and Janet PerkinsLuloff instituted proceedings in the Thirteenth Judicial District court, Carbon County, seeking to reenter andto possess acertain 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 summaryjudgment. Weaffirm. Issue Thesole issue onappeal is whether the District Court erred in granting summaryjudgment in favor of respondents. Facts Theland in dispute is anapproximately 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, nowritten document exists which purports to grant to the appellants any interest whatsoever in the property in question. In 1989, the respondents bought the 600acre ranch from Alex andRosie Manweiler (the Manweilers). At the time of the sale, the respondents were informed bythe Manweilers aswell asthe realtors whohandled the sale that the ranch did not include aspecific six
acre parcel. In the property description attached to the contractfor 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 wasexcluded from the ranch, wasthe samesix acre parcel where the appellants resided. Since the Manweilers and the realtors told them the parcel occupied bythe appellants wasexcluded from the ranch, the respondents assumedthe six acre parcel occupied bythe appellants
wasin fact "Tract B", the six acre parcel excluded from the ranch by deed. Therefore, the respondents knewthe appellants were occupying the land. However, dueto confusion regarding where "Tract B"was located, the respondents were unaware that they themselves owned the parcel occupied by the appellants. Oneor twoyears later, the respondents discovered that "Tract B"was not the land occupied by the appellants, rather "Tract B"
was adifferent parcel, ownedby aparty namedWoods. "Tract B", owned by Woods, is adjacent to, but entirely separate from, the land the appellants occupied. In April and again in Mayof 1992, the respondents and the Manweilers served the appellants with eviction notices requiring them to vacate the property. Uponappellants' refusal to vacate, the respondents filed this cause of action. Subsequently, the District Court granted the respondents' motion for summary judgment, finding that nomaterial facts were in dispute andthat the respondents were entitled to judgment as amatter of law.
3Standard of Review

Summaryjudgment is proper whennogenuine 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 52St.Rep. 1035, 1036; Brown v. Demaree (1995), - P.2d -I __I 52St.Rep. 819, 820. This Court reviews a District Court's grant of summary judgment using the samecriteria employed bythe District Court to makeits ruling. Spain-Morrow Ranch, Inc. v. West (1994), 264Mont. 441, 444, 872P.2d 330, 331; Minnie v. City of Roundup (1993), 257Mont. 429, 431, 849 P.2d 212, 214. The party moving for summary judgment has the burden of showing acomplete 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; Toombsv. Getter Trucking, Inc. (1993), 256 Mont. 282, 284, 846 P.2d 265, 266. All reasonable inferences that maybedrawn from the offered proof are to bedrawn in favor of the party opposing the summary judgment. First Security Bankv. Vander Pas (1991), 250Mont. 148, 152, 818 P.2d 384, 386. DISCUSSION Thesole issue onappeal 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. TheManweilers denythe existence of any such
4contract. Theappellants contend therefore that factual questions

remain regarding whether they andthe Manweilers hadsuch anoral agreement. They further contend legal questions also remain regarding whether that agreement, should it befound to exist, may escape the statute of frauds. Theappellants assert that summary judgment in favor of the respondents waserroneous in the face of these remaining questions. Under the statute of frauds, any sale or transfer of real property (other than anestate at will or alease for aterm less than one year) must be in writing and signed by the grantor. Sections 28-2-903, 30-11-111, and70-20-101, 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), 252Mont. 386, 830 P.2d 537. However, the appellants point out that acourt has the power to compel the specific performance of oneparty to anoral 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), 215Mont. 391, 697 P.2d 1349. Seealso Nashan v. Nashan (N.M. ~pp. i995), 894P.2d 402; Quirin, 830P.2d 537. Therefore, although they concede nowritten contract exists, the appellants nevertheless claim they havefully 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 themandthe Manweilers should begiven full force and effect andthe appellants should be allowed to keep the land.
5Contrary to the appellants' assertions, however, the District

Court did not rule on the existence or validity of an earlier contract between the Manweilers andthe 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 alease 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 sameproperty or anypart thereof in good faith and for avaluable consideration whose conveyance is first duly recorded. Theappellants do not dispute that the respondents paid valuable consideration for the land and recorded their deed first. Asfar
asrecording, the appellants admit they havenever hadanycolor of title to the property that they could even attempt to record. Nevertheless, the appellants claim the respondents cannot be considered bonafide subsequent purchasers because they did not buy the land in good faith. It is well established in Montana that abona fide purchaser is:
one who at the time of his purchase advances a new consideration, surrenders somesecurity, or does some other act which leaves him in aworse position if his purchase should beset aside, andpurchases 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), 39Mont. 314, 316, 102 P. 574, 579 (citations omitted).
6The 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 meansthe respondents cannot be considered bona fide good faith purchasers. TheBlackburns have confused occupation with ownership. The respondents cannot becharged with actual or constructive notice of the appellants' ownership of the land because the appellants donot 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, Lammev. Dodson (1883), 4Mont. 560, 2P. 298. Aperson mayacquire title bytransfer or conveyance, such as adevise from
adecedent's estate, or agift, or acommonsale. However, if a person whoclaims agiven piece of land has only adefective 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 alegal title 7to the property is presumed to have been possessed

thereof within the time required by law, and the occupation of the property byanyother person is deemed to have been under and in subordination to the legal title unless it appear that the property has been held andpossessed adversely to such legal title for 5years before the commencementof the action. This presumption has beenconsistently applied in Montana for
more than ahundred years. "The law deemsevery manto be in the legal seisin andpossession of land to which hehas aperfect 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, 563P.2d 546, 549 (citation omitted). Seealso YALivestock
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), 60Mont. 544, 199P. 685; Peters
v. Stephens (1891), 11Mont. 115, 27P. 403. Under the above presumption, possession which is not adverse
can beovercome by any record owner whohas 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 byprescription, 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.Theappellants donot havealegitimate 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. Theappellants admit they havenever paid the taxes onthe 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 bymere 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 somanyyears would beunfair. 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 themthe property onthe simple theory of equity or fairness, andthis Court hasnot discovered anyauthority in the statutes or case law which would allow such aresult. In any case, this Court is not persuaded that ordering the respondents to relinquish the land would in fact be anequitable result. Therespondents would lose apart of their ranch for which they have paid valuable consideration andto which they hold clear title. Wealso note that, while the appellants' occupancy was indeed long-term, they never received adeedfollowing the alleged
9sale 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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