NO. 95-191 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

LARRY LULOFF and 

JANET PERKINS-LULOFF, 

Plaintiffs and Respondents, 

v. 

DAVID BLACKBURN and, 

VELMA BLACKBURN, 

ix,,., i 

Defendants, Third-party Plaintiffs 

1,: i'i 

and Respondents, 

&-" 1; :~ ,i;J j_j :," /.\.*$d 

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 

Filed: 

Submitted on Briefs: August 17, 1995 

Decided: November 14, 1995 
Justice 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 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 

4 
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 

9 
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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