No. 90-628 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

INTERSTAT 

-vsJOSEPH L. 

E PRODUCTION CREDIT ASSOCIATION OF 

Plaintiff and Respondent, 

DeSAYE AND GRACE L. DeSAYE, 

Defendants, Counter-Claimants 

INTERSTATE PRODUCTION CREDIT ASSOCIATION OF GREAT FALLS, MONTANA, 

Counter-Defendant. 

APPEAL FROM: District Court of the Twelfth Judicial ~istrict, 

In and for the County of Choteau, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leo Graybill, Jr. ; Graybill, Ostrem, Warner & 

Crotty, Great Falls, Montana. 

For Respondent: 

John Paul; Alexander, Baucus & Linnell, Great Falls, 

Montana. 

Filed: 

Submitted on briefs: October 3, 1991 

Decided: November 14, 1991 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from a judgment of possession of the Twelfth 

Judicial District, Chouteau County. Subsequent to a foreclosure 

action, the District Court found that the appellants, Joe and Grace 

DeSaye (DeSaye), were not entitled to possession of their farm in 

Loma, Montana during the statutory redemption period. We affirm. 

A question in this case involves the District Court's denial 

of a motion in limine during the foreclosure proceeding. DeSaye was 

precluded from introducing expert testimony regarding the interest 

rates charged by respondent, Interstate Production Credit 

Association of Great Falls, Montana (IPCA) . However, this Court 

granted IPCA1s motion dismissing DeSayest appeal of the District 

Court's ruling on the motion in limine because DeSayes failed to 

file their appeal of the foreclosure judgment and decree in a 

timely fashion. 

There is one issue for our review. Did the District Court err 

by finding that Joseph L. DeSaye was not entitled to possession of 

the foreclosed farm during the statutory redemption period? 

Following a jury verdict in favor of IPCA, the District Court 

entered a judgment and decree of foreclosure against DeSayes. 

DeSaye objected that the judgment failed to identify how the issue 

of possession during the year of redemption would be resolved. The 

court ordered briefs on the possession issue and an evidentiary 

hearing was held. The subject property, located at Loma, Montana, 

is a large irrigated farm consisting of two houses and several 

outbuildings. The Itlarge" house is occupied by DeSayes' son Grant, 

2 
Grant's wife and their children. Grant utilizes the property to 

run cattle independently of his father. In addition, along with 

his father, he attends to farming operations. Initially, the court 

found that during the redemption period DeSaye would be entitled to 

possession of the 'small house1 but not to the 'large house', 

outbuildings and surrounding grounds. 

Subsequent to the District Court's decision, this Court 

decided Federal Land Bank of Spokane v. Snider (1991), 48 St.Rep. 

285, 808 P.2d 475. In Snider, this Court held that when determining 

possession of foreclosed property during the redemption period 

there is no basis for dividing lands that the execution debtor 

occupies. In May, 1991, we requested the District Court to 

reconsider its decision in light of the Snider decision. The 

District Court reviewed the record, found it unnecessary to obtain 

further evidence and determined that DeSaye did not occupy the 

foreclosed land as a home for himself and his family thereby 

granting possession of all the foreclosed land to IPCA. DeSaye 

appeals. 

Section 71-1-229, MCA, provides in relevant part that: 

The purchaser of lands at mortgage foreclosure is 

not entitled to the possession thereof as against the 

execution debtor during the period of redemption allowed 

by law while the execution debtor personally occupies the 

land as a home for himself and his family. 

Determining who is entitled to possession of the property hinges on 

whether DeSaye (the execution debtor) personally occupied the land 

as a home for himself and his family. Resolution of this matter is 

a question of fact to be determined by the trial court. 
This Court will affirm the findings of a trial court sitting 

without a jury unless the findings are clearly erroneous. Rule 

52(a), M.R.Civ.P. In comparison, this Court will affirm the 

verdict of a jury if there is substantial credible evidence in the 

record to support the verdict. It is necessary to clarify these 

two standards and their proper application. 

Substantial credible evidence when used to support a jury 

verdict is fairly well understood; however, when substantial 

evidence is used in the clearly erroneous standard it is less 

clear. If a finding is not supported by substantial evidence it is 

clearly erroneous. The converse proposition that a finding 

supported by substantial evidence cannot be clearly erroneous is 

not true in a non-jury case. Wright and Miller, 9 Federal Practice 

and Procedure, CiviI 3 2585 at p. 735. vvSubstantial evidence and 

clearly erroneous are not synonymous and a finding may be set 

aside, though supported by substantial evidence if found to be 

clearly erroneous.gt W.R.B. Corp. v. Geer (C.A. 5th, 1963) , 313 

F.2d 750. 

We adopt the following three-part test to determine if a 

finding is clearly erroneous. First, the Court will review the 

record to see if the findings are supported by substantial 

evidence. Second, if the findings are supported by substantial 

evidence we will determine if the trial court has misapprehended 

the effect of evidence. Western Cottonoil Co. v. Hodges (C.A. 5th 

1954) , 218 F. 2d 158.; Narragansett Improvement Company v. United 

States (1961) , 290 F. 2d 577. Third, if substantial evidence exists 
and the effect of the evidence has not been misapprehended the 

Court may still find that [A] finding is 'clearly erroneous' when, 

although there is evidence to support it, a review of the record 

leaves the court with the definite and firm conviction that a 

mistake has been c~rnmitted.~~ U.S. v. U.S. Gypsum Co. (1948), 68 

S.Ct. 525, 333 U.S. -364, 92 L.Ed. 746. 

In the instant case, the District Court based its findings 

that DeSaye did not reside in Loma on the following six facts. 

First, DeSayels telephone number was listed in Arizona at the home 

of his present wife, Carol Struck, while no listing was found in 

his name at the Loma farm. Second, neither DeSayels mailing 

address nor vehicle registration identify the Loma farm. His 

mailing address is a post office box at Havre, Montana. Third, 

Desaye was found to have spent more than 50 percent of his time in 

Arizona. Fourth, his current wife resides in Mesa, Arizona and has 

never spent a night at the Loma farm. Fifth, Joe and Grace Desaye 

divorced in 1989. Joseph L. DeSaye claimed in petition for 

dissolution and was found in the final decree of marriage 

dissolution to be a resident of the State of Arizona. Sixth, the 

farmhouse is occupied by DeSayest son and his family who run 

livestock independent of DeSaye. 

We find that the facts above provide substantial evidence that 

DeSaye did not make his home at the Loma farm. DeSaye contends that 

these facts are not determinative. He testified and maintains that 

he considers the Loma farm to be his home. Numerous examples from 

the record are cited to refute the District Court's finding and to 
support his contention that he does in fact live at the Loma farm. 

DeSaye alleges that the record clearly supports a finding that he 

does reside at the Loma farm and that he should be given possession 

during the redemption period. 

Although conflicts may exist in the evidence presented, it is 

the duty of the trial judge to resolve such conflicts. Due regard 

is to be given the trial court's ability to judge the credibility 

of the witnesses. Rule 52(a), M.R.Civ.P. This Court's function is 

not to substitute its judgment for the trier of fact. Wallace v. 

Wallace (1983), 203 ~ont. 255, 661 P.2d 455. 

The language of 5 71-1-229, MCA, is clear in that execution 

debtors themselves must 'personallyt reside at the foreclosed 

property. We decline Desaye's invitation to include his son's 

family residence at the farm as being able to substitute for his 

own. While it is unclear why the District Court initially found 

that DeSaye did reside in the 'small house, ' but on reconsideration 

found that the small house was not his home, it remains that the 

substantial evidence does support the court's finding on 

reconsideration. The District Court did not misapprehend the 

effect of its evidence. Furthermore, a review of the evidence does 

not leave us with a definite and firm conviction that a mistake has 

been committed. Affirmed. 

Justice / 

We Concur: