No. 85-85 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

JOHN L. WRIGHT, 

Plaintiff and Appellant, 

-vsLARRY P. BLEVINS, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District 

In and for the County of McCone, 

The Honorable R. C. McDonough, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert Hurly, Glasgok, Montana 

Habedank, Cumming, Best & Maltese, Sidney, Montana 

For Respondent: 

Arnie A. Hove, Circle, Montana 

Submitted on Briefs: July 11, 1985 

Decided: August 29, 1985 

Filed: !3uG 2 9 1905 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appeal by John L. Wright from a judgment against him 

entered in the District Court, Seventh Judicial District, 

McCone County. 

Wright brought an action in the District Court to set 

aside a deed to real property situated in McCone County which 

Wright had delivered to Blevins, principally on the grounds 

of fraud and lack of consideration. The District Court held 

in favor of Blevins. We affirm the District Court. 

On July 13, 1982, John L. Wright, a single man, made, 

executed and delivered to Larry P. Blevins, for a 

consideration of $1.00, approximately 4500 acres of ranch 

land in McCone County. In the deed, Wright reserved unto 

himself all income from the minerals owned by him during his 

natural life. 

On January 13, 1983, Wright filed an action in the 

District Court alleging that the deed was procured by fraud 

on the part of Blevins, that the deed lacked consideration, 

and that the deed was not based on any agreement between the 

parties. The District Court held against the plaintiff 

Wright on his allegations, and entered judgment sustaining 

the deed by determining that Wright has no right, title or 

interest in the property described in the deed except for the 

life interest in income from the minerals. From that 

judgment, Wright appeals. 

The facts as found by the District Court are favorable 

to Blevins. Those findings show that at the time the deed 

was delivered, John L. Wright and Larry P. Blevins were the 

owners of the deeded property as tenants in common. The 
ranch was originally known as the Blevins ranch, having been 

developed by Lee Blevins, an uncle of Larry. John L. 

Wright's deceased wife, Edith Wright, and Bill Blevins were 

sister and brother of Lee Blevins. In 1955, prior to his 

death, Lee Blevins deeded to John L. Wright and Bill Blevins 

(I,arryls father) 2600 acres of land as tenants in common in 

which Lee Blevins had owned a 100 percent interest. In 

addition, he conveyed a 50 percent interest in another 1800 

acres of land to John Wright and Bill Blevins, as tenants in 

common. In 1964, John Wright and Bill Blevins bought the 

other one-half interest in the other 1800 acres from Prince 

Anderson. John Wright received another 640 acres by 

distribution of the estate of his wife, Edith Wright Blevins. 

When Lee Blevins made the gifts of the land to John 

Wright and Bill Blevins in 1955, he told them to deed the 

land over to Larry Blevins "when they were done with it." In 

1979, before his death, Bill Blevins, the father of Larry, by 

deeds prepared in the law offices of Gene Theroux, deeded 

over to his son, Larry, his interest in the Lee Blevins land. 

At that time, John Wright was also asked to deed over the Lee 

Blevins land and the Edith Blevins land to Larry, but John 

declined, stating that he still had some use for it. 

For some years prior to December 1982, Larry Blevins was 

a member of the U.S. Army but would spend time on leave at 

the ranch and at his father's home in Wolf Point, Montana, 

prior to leaving the Army. In July 1982, plaintiff John 

Wright came to see the defendant, Blevins. Wright informed 

Blevins that he would talce care of deeding the land to him. 

John Wright stayed with Larry Blevins that night. That same 

afternoon, Larry Blevins called the lawyer, Gene Theroux in 
Wolf Point, Montana, and asked him to prepare the deeds, 

transferring the land from John Wright to Larry Blevins. 

At that time, there was added, at the request of Wright, 

the reservation of the minerals income to John Wright for his 

lifetime and that reservation was typed in prior to the 

execution of the deed. John Wright signed the deed, and in 

the office of Theroux received from Blevins the sum of $1.00 

although Wright stated that such consideration was not 

necessary. The actual signing of the deed took place on July 

13, 1982. The deed was subsequently recorded. 

In the first part of August 1982, Wright did sell the 

lands that he did not wish to convey to Larry Blevins. The 

sale was made to other parties. 

The court further found that in October 1982, Wright 

informed Eleanor Schmeltzer, a long-time friend that he had 

known for over 60 years, that he had deeded his interest in 

the Blevins land to Larry because he was through with the 

land. 

The court also found that although Wright alleged that 

he thought he was signing a lease in the land instead of a 

deed, and that they had previously discussed a lease, Wright 

was nevertheless unable to testify as to what the terms of 

the lease were to be with the exception that at one time he 

stated that the lease was to be for two years. At another 

time in the trial he did not know the terms of the lease and 

said that the rent would be a share of the cattle in 

accordance with the months of use, but nothing more specific 

than that. 

The court also found that Wright consistently stated 

that when he was through with the land it was his intention 

that he would deed his share of the land to Larry Blevins. 
The issues raised by Wright on appeal are: 1) that the 

District Court erred in failing to void the transfer of real 

property to Blevins; and 2) that the findings of fact and 

conclusions of law are not supported by the evidence. 

The disputes of fact that relate to the claim of fraud, 

and to the claim of insufficiency of the evidence to support 

the District Court judgment are intertwined. Therefore, we 

will discuss the facts claimed by Wright to support his 

allegations for the purpose of both issues. 

Wright testified that he was called by Blevins who said 

he needed Wright in Wolf Point to sign a lease agreement. 

Wright testified that he was living on Social Security and 

interest proceeds from savings that were being depleted, and 

that he could not handle the property without hired help 

because of the expense. Wright contended that he was not 

through with the property, that he still had use for it. 

Wright further contends that even under Blevins' 

testimony, Wright was intoxicated when he met with Blevins, 

and that they had visited two bars in the morning before 

going to the attorney's office for the signing. Moreover, 

Wright testified that he was hard of hearing, and unable to 

understand what was going on because of that disability. He 

therefore claims that without benefit of his attorney being 

present, being aged, intoxicated, and extremely hard of 

hearing, he signed a warranty deed conveying not only his 

interest in the property but that also of Larry Blevins to 

Blevins when he thought he was executing a lease. He was 

under the impression that he was leasing the property for a 

period of 2 years. Wright stated that he did not review or 

read the instrument before he signed it, relying on Blevins' 

representation that he was signing a lease agreement. 
Afterwards, he assigned grazing rights to federal lands 

under leases that were a part of the ranch to Neula Gribble, 

and told her husband, John Gribble that he had leased the 

other property to Blevins. 

Offsetting the testimony of Wright is that of Blevins 

and the Attorney Gene Theroux. By their testimony, the deed 

was inspected by Wright who wa.nted to make sure that the land 

owned by him individually was not included in the deed to 

Larry Blevins, which land he stated he never promised to 

Larry Blevins. He intended to sell the separate land of 

approximately 3000 acres. Wright did not appear to be 

drinking or confused, nor did there appear to be any pressure 

on him. The description of the deed was read by Wright and 

by the attorney. At that time, at the request of Wright, a 

reservation of the mineral income to Wright for his lifetime 

was typed in the d.eed prior to its execution. John Wright 

signed the deed in the presence of the attorney and Blevins. 

The deed recited the payment of $1.00 as consideration, and 

Wright received from Blevins the sum of $1.00 in Theroux's 

office although the plaintiff stated that such consideration 

was not necessary. The actual signing of the deed took place 

on July 13, 1982. 

On August 4, 1982, Wright did sell the separate Lands to 

third parties. 

It was Wright's contention throughout the trial that 

when he no longer had use for the land, he would deed the 

land to Blevins. 

It is clear that the law in this state, stated by us 

many times, in cases tried to the court without a jury, the 

credibility of witnesses is for the District Court to decide, 

and in the absence of an abuse of discretion, the District 
Court's findings of fact which resolve contested issues of 

fact will not be set aside by us unless clearly erroneous. 

Rule 52 (a), M.R.Civ.P. 

The findings of fact made by the District Court are 

clearly supported in the evidence, and far from being clearly 

erroneous, appear proper in the light of the circumstances 

under which Wright acquired the lands. 

Moreover, the District Court's findings negate any 

possibility of holding for Wright on the grounds of fraud. 

In order to establish fraud, the same elements must be 

established in a trial before a judge as in a jury trial. 

Young v. Handrow (1968), 151 Mont. 310, 316, 443 P.2d 9, 12. 

Actual fraud based on misrepresentation requires proof of the 

representation, its falsity, its materiality, the speaker's 

knowledge of its falsity, or his ignorance of its truth, the 

speaker's intent that it should be acted upon by the person 

and in the manner reasonably contemplated, the hearer's 

ignorance of its falsity, the hearer's reliance upon its 

truth, the hearer's right to rely thereon, the hearer's 

consequent injury. Wortman v. Griff (Mont. 1982), 651 P.2d 

998, 1000, 39 St.Rep. 1916, 1918; Cowan v. Westland Realty 

Company (1973), 162 Mont. 379, 383, 512 P.2d 714, 716; Clough 

v. Jackson (1971), 156 Mont. 272, 279, 280, 479 P.2d 266, 

270; Hutton v. Ming (1970), 155 Mont. 149, 153, 467 P.2d 688, 

690. Fraud can never be presumed but must be proved. 

Section 28-2-404, MCA; Poulsen v. Treasure State Industries, 

Inc. (Mont. 1981), 626 P.2d 822, 825, 38 St.Rep. 218, 221. 

Proof of fraud must he by a preponderance of the evidence, 

C0wa.n 17. Westland Realty Company, supra. 

The District Court did not find that Larry Elevins had 

been guilty of any deceit or false representation as to the 
contents of the deed so as to put Wright off guard. In such 

case the rule of law announced by this Court in Hjermstad v. 

Rarkuloo (1954), 128 Mont. 88, 270 P.2d 1112, applies. A 

party will not be relieved, either by a court of law or a 

court of equity, where he executes an instrument without 

reading it, when he has it in his hands and negligently fails 

to ascertain the contents of it and the other party is not 

guilty of any deceit or false representation as to its 

contents. Hjermstad, supra. 

Wright also contends, however, that the warranty deed in 

this case should be voided because the real property in this 

case had an approximate value of $300,000 to $600,000 and the 

consideration recited in the deed and proved to have been 

given was the sum of $1.00. Wright contends that under 

section 26-1-602(38), MCA, the recitation in a deed or 

contract that there was "good and sufficient consideration" 

is a disputable presumption. Wright relies on Baker National 

Bank v. Lestar (1969), 153 Mont. 45, 453 P.2d 774, and White 

v. Nollmeyer (1968), 151 Mont. 387, 443 P.2d 873, to the 

effect that fair consideration is necessary. In White v. 

I\lollmeyer, supra, we said that the test to be applied was 

whether the disparity between the true value of the property 

transfer and the price paid is so great as to shock the 

conscience with the conviction that the transfer could never 

have been made in good faith. The District Court, however, 

found that in making the deed in this case, Wright had the 

intention of making a donative transfer in addition to 

receiving the $1.00 consideration. Wright objects to this 

finding of the court, stating that a finding that there is 

sufficient consideration for a deed is not compatibl-e with 
finding an intention to make a gift, which would require no 

consideration. 

We cannot ignore, however, that Wright received the land 

originally as a tenant in common with Bill Blevins, the 

father of Larry Blevins, and under the stipulation or 

condition that they deed the lands to Larry "when they were 

done with it." The performance of this condition by Wright 

was characterized by the District Court as an act of donative 

intent, but regardless, whether looked at as a gift, or as a 

performance of a condition, this coupled with the payment of 

$1.00 constituted fair and adequate consideration in this 

case. 

There was a side issue to which we attach no relevance, 

in that after the transfer by deed, Larry Blevins and his 

wife petitioned to be appointed guardians of Wright by reason 

of his chronic alcoholism. The guardianship was eventually 

dissolved by the District Court on the ground that Wright was 

capable of managing his own affairs. The point which Wright 

attempts to make is that at the time of the transfer of the 

deed Blevins contends that Wright was not intoxicated, but 

some months later he attempted to be appointed Wright's 

guardian on the grounds of Wright's chronic alcoholism. The 

circumstances of the guardianship do not prove or disprove 

any fact at issue in connection with the issues of the 

warranty deed, and we attach no importance to it. 

The judgment of the District Court is affirmed. 

- --"\, 
We Concur: 

P