NO. 82-62
IN THE SUPREME COURT OF THE STATE OF MONTANA 1983

FRANCES V. JARRETT, Plaintiff and Respondent,

VS. LEO R. JARRETT, ADA M. CASSADY, JACK JARRETT and DORA JARRETT, Defendants and Appellants.

Appeal from: District Court of the Fourteenth Judicial District, In and for the Countyof Musselshell Honorable NatAllen, Judge presiding. Counselof Record: For Appellants: RobertW. Holmstrom argued, Billings, Montana For Respondent: John L. Prattargued, Roundup, Montana

Filed: Submitted: January 19, 1983
Decided: February 18, 1983 

# FEB18

## 5983Mr. JusticeL. C. Gulbrandson delivered the Opinion of the Court.

This action is forpartition of a ranch by one of the tenants incommon. It was heard by theDistrict Court of the Fourteenth Judicial District, Musselshell County, which decided that the respondent did have the right 

### to partition. Based on the stipulation of the parties that the ranch could not be physically divided, the court ordered the property sold, the proceeds to be divided among the cotenants. Jack and Dora Jarrett owned the family ranch in Musselshell County. The ranch had been in

### Mrs. Jarretttsfamily forapproximately 100years. In 1972, as part of an estate plan, they began gifting the ranch to their children, James L. Jarrett, Leo R. Jarrett, and Ada M. Cassady, as tenants in common. This gifting program was completed in 1976, thereby giving each child an undivided 1/3 interest intheproperty. In 1973 the three children entered into a one-year lease of the property with their parents. Under the lease the parents paid allthe taxes and maintained the improvements. These duties constituted their rental payments. The lease also contained a provision that it was 

### to be automaticallyrenewed annuallyunless terminated in writing by either of the parties at least thirty days prior to the expiration of the annual 

### term. All the income from the ranch went to the parents, including 

### oil and gas lease payments, which all the children assigned 

### to them. In 1980, James L. Jarrett, one of the children, died. At that time his wife, Frances V. Jarrett, inherited his 1/3 interest in the ranch. InJune 1981, Frances brought an action for partition of the ranch, and the parties stipulated she was the owner of an undivided 1/3 interest intheproperty. Three issues arepresented in thiscase: 1. Whether an implied agreement between the cotenants and parentswaived their right 

### to partition?2. Whether the court should have imposed a resulting trust upon theparties to prevent partition? 3. Whether 

### or not the sale of the ranch ordered by the District Court, because it could not physically be partitioned, should be made subject to the lease of 2/3 of it toJack and Dora 

### Jarrett? Section 70-29-101, MCA, authorizes partition. That section reads as follows: "Action

- for partition authorized--who 

### may bring. 

### ~Kex seieralc!Eenantsh7l1d and 

### are in - -- possession of real property 

### as joint tenants or tenants in common, inwhich one 

### or more of them have an 

### estateof inheritance orfor life 

### or lives 

### or for years, an action may be brought by one or 

### more of such persons for a partition thereof, according 

### to the respective rights of the persons interested therein, and for a sale of such property 

### or a part thereof if it appears that 

### a partition cannot be made without a greatprejudice to the owners." From the wording of that section, it may appear thatthe right to partition is absolute. However, in Lawrence v, Harvey (198O), Mont

# . - -.-.. --.-

## , 607 P.2d 551, 37 St.Rep. 370, this Court has declared it 

### is not, where it 

### states: "Although there are no Montana cases directly on point, the general rule is that a cotenant 

### is entitled topartition

### as a 

### matter of right, and not merely 

### as 

### a matter of grace within the discretion of the court. While the right is sometimes said to be absolute, partition may be denied where it would be against public policy 

### or legal 

### or equitable principles, and the right may in appropriate circumstances be waived by agreement of the parties. 68 C.J.S. PartitionS 21; 59 Arn.Jur.2d PartitionS 30; 4 Thompson on Real Property S 1822 (1979); 2 Tif£anyon Real Property S 474 (3rdEd. 1939); 4A Powell on Real Property S 611 (1949)

# ." 607 P.2d at555, 556. The appellants contend that the existence of an agreement waiving partition is implied here because of the family understanding to allow the parents to live on the land until theirdeaths. Wedo not agree. The testimony of Leo R. Jarrett, the surviving son points to the absence of any agreement, as he testified that there 

### was never any specific discussion 

### or agreement on whether the cotenants could 

### or could not partition. Furthermore, the testimony of Ada M. Cassady, the 

### Jarrettlsdaughter, and one of the cotenants, makes clear the lack of agreement, express 

### or implied, where she testified that her brother Jim, prior to his death, stated that he could legally claim a portion of the ranch. It must be understood that "[clotenants have the right to equal access and use of the property held in common 

# . . ."
Toeckes v. Baker (1980), -- --Mont

# . -- -- 

## , 611P.2d 609, 612, 37 St.Rep. 948. To imply an agreement waiving partition under the circumstances of this 

### case would deprive Frances 

### Jarrett, one of the cotenants, of herrights 

### to the property. The next issue thatmust be addressed is whether there

### was a resulting trust in favorof the parents. Both sides raise the same 

### case when speaking of resulting trust. Eckart v. Hubbard (1979)

## , - - Mont

# . ----. . . 602 P.2d 988, 36 St.Rep. 2061. In that case we stated: "A resulting trust occurs where, as a result of certain 

### acts, a court finds that there is an implied intent to create a trust and imposes a trust to achieve an equitable result. Usually resulting trusts involve cases where thepartieshave used ambiguous language which the court construes as showing a trust intent, 

### or where the parties have expressed no intent 

### tocreate a trustby words, but have performed acts from which the court infers that a trust 

### was intended. -- Bogert, supra, 

### 5 71, p. 262." 602 P.2d at991. In the present case it is not contended that the language used by the parties 

### was ambiguous. The deeds conveying the fee title of the land to the children

### are clear, 

### as are the terms of the lease between the parents and children. It is claimed that theparties' actions show thatthe parents

### were tohave the beneficialuse of the land. However, these actions were based on the terms of the lease. Therefore, there is no resulting trust. The final issue to be addressed is whether ornot the ranch property should be sold subject to a 

### lease on 2/3 of it from Leo R. 

### Jarrett and Ada M. Cassady 

### to Jack and Dora 

### Jarrett. The District Court's determinationthat it should not be sold subject 

### to such a 

### lease 

### is correct. It 

### is true a tenant incommon may lease his interest inpro-perty to anyone he wishes. Hochsprung v. Stevenson (1928), 82 Mont. 222, 266 P. 406; Arnundson v. Gordon (1958), 134Mont. 142, 328 P.2d 630. However, the lease inquestionhere is not a lease by each cotenant of his orher interest in the ranch property to theparents, but is a lease by allof the cotenantsof the entire ranch property. This lease of the entire property expired January3, 1982, subsequent 

### to the dateon which Frances senther notice of termination, and prior to the District Court's final judgment of January 28 1982. Under these circumstances, in order for the automatic renewal provision inthe lease, which in effect is a new lease of the entire property each year, 

### to be effective all the cotenants must agree to 

### or ratify the lease, because it is a well-settled principal of the 

### lawthat: "In order to make a binding lease of the

- - -- - --- - - -- entire common property, all o£ the co-owner~ --- - ---- - - - must 

### act, eitherjointly 

### or severally, forit

-. - - ----- -- -- - -- - 1swellsettledthatonecotenanthasnopower ---- - --- .- - to lease the entire estate, - or

- -- any specific portion thereof, unless he is duly authorized -- -- - - ----- - todo 

### so by the other cotenants. If one of -- - - - - --- the co-owner~ should purpose to make an unauthorized lease of this kind, it is in no way binding upon the interests of the other owners

# ." (Emphasis added.) 20 Am.Jur.2d CotenancyonJointOwnership g 100. (See

### also ---- Powell on ~Gl-~merty, VO~. 4A, g 608.) Frances Jarrett's notice of termination, which would only be effective

### as 

### to her 1/3 interestunder circumstances other than a

new lease, 20 Am.Jur.2d Cotenancy and JointOwnership g100, indi- -- - - - -- 

### cates that she neither agreed to nor in any way ratified the renewal of the lease for 1982. Therefore, the automatic renewal provision cannot takeeffect, because as pointed out above, it 

### is ineffect a new lease of the entireproperty and thus needs the agreement orratification of allthe cotenants. For the foregoing reasons, the judgment of the? DistrictCourt is affirmed.

Justice:4e corcur: 

# %&,$?" ~IL.PQ Chief Jhgti e