No. 13343 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

EDWIN G. JOHNSON and ALICE JOHNSON, husband and wife, Plaintiffsand 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: 

# MAR2 1977 \r;BT( 

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### 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 fencewasmoved, he has used lot 

### 7 as pasturage whenever he wanted to without securing William's permission. The fence was moved again in 1972because, according to William, Edwin did not think the prior locationwas fair to him. Aside from the controversy over lot 7,Edwin and William have each resided and occupied the respectiveparcel 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 indefiniteperiod of time, the two brothers shared the use of some of the farm equipment.William had made substantial improvements on hisresidence 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 incommon and theproceeds from the leases divided. In 1972 Edwin filed thepresent action seeking a statutorypartition of the land. William was named asdefendant and their respective wives were joined asparties fordower 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 conclusionsof law tothe effect that the brothers had made

a fairand equitable division of theproperty by parol partition in 1957, excepting mineral interests, and thatEdwin had acquired lots 1, 4 and 5 thereunder and William had acquired lots 6, 7, 14, 15and 16. Judgment was entered thereon inwhich Edwin's suitfor statutorypartition was dismissed. Edwin appeals, assigning two issues forreview: (1)Sufficiencyof the evidence to support thejudgment of parol partition. (2)Whether thewives of the parties must agree toa parol partition. Defendant William has injected an additional issue for review, viz. whether the statuteof frauds bars an executed oralpartition of theproperty. We firstdirectour attentiontothe additional issueof the statuteof frauds. Wehold this is a non-issue inthiscase. The statuteof frauds was not plead asan affirmative defense to William's claimof parol partition asrequired by Rule 8(c), M.R.Civ.P. As this issuewas not raised inthedistrictcourt, it willnot be considered for the firsttimeon appeal. Massa v. SRS

### , Mont

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## , 34 St.Rep. 72, decided February -I 

### -22, 1977;Pickettv. Kyger, 151Mont. 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:"Thatduring 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 interestswhich 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, 151Mont. 507, 445 P.2d 48. The credibility of thewitnesses 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, 151Mont. 409, 443 P.2d 884. In determining whether the evidence supports the findings and judgment, the evidencemust 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 improvementsby William on his parcel without contribution or assistance by Edwin, (3)the separate operationby each brother of his respectiveparcel with no accounting to the other of the proceeds, and (4) the payment of taxes by each brother on his respective parcel. Additionally therewas atleast a tacit acquiescence by Edwin in all this and his acceptance of the benefits of the division. Edwin points out that therewas 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 asmineral rights. 68 C.J.S. Partition, Sec. 4,p. 10;Updike v. Smith, 378 Ill. 600, 39 N.E.2d 325. The final issue iswhether 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 1957when 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 interestwas but an expectancywhich might ormight 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 inMontana. 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, 165Mont. 180, 527 P.2d 62. The district court's further finding that the parol partition was a fair and equitable division of the property waslikewise 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 

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