No. 13343 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

EDWIN G. JOHNSON and ALICE JOHNSON, 

husband and wife, 

Plaintiffs and Appellants, 

WILLIAM E. JOHNSON and RUTH N. JOHNSON, 

husband and wife, 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellants: I 

Ayers and Alterowitz, Red Lodge, Montana 

Arthur W. Ayers argued, Red Lodge, Montana 

For Respondents: 

Robert F. Conwell, Red Lodge, Montana 

Scribner and Huss, Helena, Montana 

Lawrence D. Huss argued and Michael Maloney 

appeared, Helena, Montana 

Submitted: January 13, 1977 

Decided : MAR 2 1977 

\r;BT( 1. '5 1-1 Filed. 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The district court of Carbon County, Hon. C. B. Sande, district 

judge, sitting without a jury, entered judgment decreeing a par01 

partition of property between two brothers. Plaintiff brother 

Edwin, who sought a statutory partition, appeals. 

The property in question, consisting of eight government lots, is located about 2 1/2 miles southwest of Roberts in 

Carbon County, Montana. The father of the parties had acquired 

the farmlands from two separate sources during his lifetime. 

Prior to his death he deeded all the land to his two sons Edwin 

and William, the parties in the present litigation, as tenants 

in common. 

The father died in August, 1957. Thereafter defendant 

William occupied and used lots 6, 14, 15 and 16 while Edwin 

occupied and used lots 1, 4 and 5. A controversy exists concerning lot 7. William claims that in 1957 the fence running through 

lot 7 was taken down and moved by him to what he thought was the 

boundary line between lots 4 and 7 and that he has occupied and 

used all of lot 7 exclusively since then. Edwin claims that since 

1957 when the fence was moved, he has used lot 7 as pasturage 

whenever he wanted to without securing William's permission. 

The fence was moved again in 1972 because, according to William, 

Edwin did not think the prior location was fair to him. 

Aside from the controversy over lot 7, Edwin and William 

have each resided and occupied the respective parcel of land that 

each was farming. Each owned his own livestock. Each pastured, 

tilled, irrigated, fenced and fertilized his respective parcel. 

Each paid the taxes on his own parcel. William paid the taxes on 

lot 7. Neither accounted to the other for the proceeds from 

his respective parcel. For an indefinite period of time, the 

two brothers shared the use of some of the farm equipment. 
William had made substantial improvements on his residence and 

land. 

The water rights, both decreed and contractual, were 

divided with each brother paying his share of the charges. The 

mineral rights were held in common and the proceeds from the 

leases divided. 

In 1972 Edwin filed the present action seeking a statutory partition of the land. William was named as defendant and 

their respective wives were joined as parties for dower purposes. 

William filed an answer and counterclaim resisting statutory 

partition and claiming a parol partition of the lands in 1957. 

Following trial, Judge Sande entered findings of fact 

and conclusions of law to the effect that the brothers had made 

a fair and equitable division of the property by parol partition 

in 1957, excepting mineral interests, and that Edwin had acquired 

lots 1, 4 and 5 thereunder and William had acquired lots 6, 7, 

14, 15 and 16. Judgment was entered thereon in which Edwin's 

suit for statutory partition was dismissed. 

Edwin appeals, assigning two issues for review: 

(1) Sufficiency of the evidence to support the judgment 

of parol partition. 

(2) Whether the wives of the parties must agree to a parol 

partition. Defendant William has injected an additional issue 

for review, viz. whether the statute of frauds bars an executed 

oral partition of the property. 

We first direct our attention to the additional issue of 

the statute of frauds. We hold this is a non-issue in this case. 

The statute of frauds was not plead as an affirmative defense to 

William's claim of parol partition as required by Rule 8(c), 

M.R.Civ.P. As this issue was not raised in the district court, 

it will not be considered for the first time on appeal. Massa v. 

SRS , Mont . P.2d , 34 St.Rep. 72, decided February -I - 
22, 1977; Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57; Close 

v. Ruegsegger, 143 Mont. 32, 386 P.2d 739. 

Proceeding to the question of sufficiency of the 

evidence to support a judgment of parol partition, we note the 

pertinent findings of fact of the district court expressed as 

follows : 

"That during the year 1957 each party hereto 

assumed possession of and exercised exclusive 

use and control over a separate, specific parcel 

of the whole property, paid taxes thereon and 

has ever since continued to do so, except for 

mineral interests which they continued to hold 

and lease as tenants in common." 

The function of this Court on appeal is to determine 

whether there is substantial evidence to support this finding. 

Spencer v. Robertson, 151 Mont. 507, 445 P.2d 48. The credibility of the witnesses and the weight to be given their testimony is a matter for the district court's determination in a 

nonjury case. Hellickson v. Barrett Mobile Home Transp., 161 

Mont. 455, 507 P.2d 523; Eliason v. Eliason, 151 Mont. 409, 443 

P.2d 884. In determining whether the evidence supports the 

findings and judgment, the evidence must be viewed in the light 

most favorable to the prevailing party in the district court. 

Strong v. Williams, 154 Mont. 65, 460 P.2d 90. 

Applying these principles we find that the evidence, 

though conflicting in some respects, is sufficient to support 

the judgment of parol partition. There are four separate elements of proof substantiating the fact of parol partition: 

(1) The actual physical partition between lots 4 and 7, (2) the 

separate improvements by William on his parcel without contribution or assistance by Edwin, (3) the separate operation by 

each brother of his respective parcel with no accounting to the 

other of the proceeds, and (4) the payment of taxes by each 

brother on his respective parcel. Additionally there was at 
least a tacit acquiescence by Edwin in all this and his acceptance of the benefits of the division. 

Edwin points out that there was no partition of the 

mineral interests in the land in support of his contention that 

there was no parol partition. This is of no consequence, however, as land may be partitioned without partitioning some 

interest therein such as mineral rights. 68 C.J.S. Partition, 

Sec. 4, p. 10; Updike v. Smith, 378 Ill. 600, 39 N.E.2d 325. 

The final issue is whether the wives of the brothers 

must agree to the parol partition to make it effective. The 

evidence discloses that Edwin's wife denies that she agreed to 

any parol partition and that William's wife could not remember 

being a party to any such agreement. 

In 1957 when the parol partition occurred, each wife had 

a dower interest in her husband's land. This dower interest 

was inchoate and would not ripen into a vested or accrued right 

until the death of her husband. Section 22-101, R.C.M. 1947. 

Until that time, her dower interest was but an expectancy which 

might or might not develop into an interest in the land itself. 

Thus her participation or agreement in the parol participation 

was not required. Had she survived her husband and thus acquired 

an interest in the land itself, the binding effect of the parol 

partition on her might be subject to question but that is not 

this case. Both parties and their wives were living on July 1, 

1975, the effective date of the Uniform Probate Code abolishing 

dower rights in Montana. Section 91A-2-112, R.C.M. 1947. By 

this enactment, the legislature removed this expectation of a 

vested right in the land. Stovall v. Dept. of Revenue, 165 Mont. 

180, 527 P.2d 62. 

The district court's further finding that the parol 

partition was a fair and equitable division of the property was 
likewise supported by substantial evidence. The assessed value 

of Edwin's parcel of property was $4,798 and William's was 

$4,595, while the respective acreages were 120.45 for Edwin 

and 138.76 for William. 

The judgment of the district court is affirmed. 

Justice 

J stices \-- Y