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 County of Musselshell 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Robert W. Holmstrom argued, Billings, Montana 

For Respondent: 

John L. Pratt argued, Roundup, Montana 

Filed: 

Submitted: January 19, 1983 

Decided: February 18, 1983 

FEB 1 8 5983 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. 

This action is for partition of a ranch by one of the tenants 

in common. It was heard by the District 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. Jarrettts family for approximately 100 years. 

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 in the property. 

In 1973 the three children entered into a one-year lease of 

the property with their parents. Under the lease the parents 

paid all the taxes and maintained the improvements. These duties 

constituted their rental payments. The lease also contained a 

provision that it was to be automatically renewed annually unless 

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. In June 1981, Frances brought an action 

for partition of the ranch, and the parties stipulated she was 

the owner of an undivided 1/3 interest in the property. 

Three issues are presented in this case: 

1. Whether an implied agreement between the cotenants and 

parents waived their right to partition? 
2. Whether the court should have imposed a resulting trust 

upon the parties 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 to Jack and Dora 

Jarre tt? 

Section 70-29-101, MCA, authorizes partition. That section 

reads as follows: 

"Action - for partition authorized--who may 

- 

bring. ~Kex seieral c!Eenantsh7l1d and are in -- possession of real property as joint tenants 

or tenants in common, in which one or more of 

them have an estate of inheritance or for 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 great prejudice to the owners." 

From the wording of that section, it may appear that the right to 

partition is absolute. However, in Lawrence v, Harvey (198O), 

Mon t . - - .- .. - -. - , 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 to partition 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. 

Partition S 21; 59 Arn.Jur.2d Partition S 30; 4 

Thompson on Real Property S 1822 (1979); 2 

Tif £any on Real Property S 474 (3rd Ed. 1939) ; 

4A Powell on Real Property S 611 (1949) ." 

607 P.2d at 555, 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 

their deaths. We do 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 Jarrettls 
daughter, 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 . -- -- , 611 P.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 her rights to the property. 

The next issue that must be addressed is whether there was a 

resulting trust in favor of 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 

the parties have used ambiguous language which 

the court construes as showing a trust intent, 

or where the parties have expressed no intent 

to create a trust by words, but have performed 

acts from which the court infers that a trust 

was intended. -- Bogert, supra, 5 71, p. 262." 

602 P.2d at 991. 

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 

the parties' actions show that the parents were to have the benef icial use 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 or not 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 determination that it should not be sold subject 

to such a lease is correct. 

It is true a tenant in common may lease his interest in pro- 
perty to anyone he wishes. Hochsprung v. Stevenson (1928), 82 

Mont. 222, 266 P. 406; Arnundson v. Gordon (1958), 134 Mont. 142, 

328 P.2d 630. However, the lease in question here is not a lease 

by each cotenant of his or her interest in the ranch property to 

the parents, but is a lease by all of the cotenants of the entire 

ranch property. This lease of the entire property expired 

January 3, 1982, subsequent to the date on which Frances sent her 

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 in the 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 law that: 

"In - - order to make a binding lease of the - - - - -- - - -- 

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

must act, either jointly or severally, for it -. - - - -- -- - - -- - -- - 

- 1s well settled that one cotenant has no power - -- - - -- .- - to lease the entire estate, - or - -- any specific 

portion -- thereof, unless he is duly authorized -- - - -- - - - - to do 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 

Cotenancy on Joint Ownership 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 interest under circumstances other than a 

new lease, 20 Am.Jur.2d - 

Cotenancy - - and - Joint Ownership 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 take effect, because as pointed out above, it is 

in effect a new lease of the entire property and thus needs the 

agreement or ratification of all the cotenants. 

For the foregoing reasons, the judgment of the? District Court 

is affirmed. 

Justice 
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Chief Jhgti e