No. 85-172 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

YOLANDA BLAKELY, 

Plaintiff and Respondent, 

REIDER E. KELSTRUP and DELORES J. 

KELSTRUI? , 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morrow, Sedivy & Bennett; Lyman H. Bennett, Bozeman, 

Montana 

For Respondent: 

Wayne Jennings, Bozeman, Montana 

Submitted on briefs: Aug. 15, 1985 

Decided: October 22, 1385 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order and judgment of the 

District Court, Eighteenth Judicial District, Gallatin 

County, Montana. The case was bifurcated, the Honorable W. 

W. Lessley presiding at the bench trail and the Honorable 

Joseph B. Gary presiding at the hearing on damages. 

Following the bench trial the court found the plaintiff 

entitled to possession of two mobile homes and three acres of 

land, more or less, on which the homes were situated. At the 

subsequent hearing on damages the court awarded plaintiff 

treble damages of $4,500 pursuant to 5 70-27-207, MCA, for 

reasonable rent of the trailer homes and land. The defendant 

appeals. We affirm. 

Plaintiff, Yolanda Blakely, bought, developed, improv~d 

and then attempted to sell land. The land in question was 

leased to defendants, Reider and Dolores Kel strup, rent-free 

for five years. During the lease period Rlakely assigned her 

interest in the leased property to the Triple B Trust. The 

assignment was recorded. The Trust later reassigned the 

interest to her through a quitclaim deed, which was not 

recorded. At the end of the lease period Kelstrups refused 

to vacate the premises and Blakely filed a complaint against 

them under Montana's forceable entry and detainer statutes, 

Title 70, ch. 27, MCA. Kelstrups defended, alleging Blakely 

was not the proper party to bring the action because she was 

not the real party in interest, and the action should be 

dismissed. 

Resolution of the case turns on the relationship 

between the recording statutes and which party is the real 

party in interest. Kelstrups claim Blakely is not the real 

party in interest because she did not record the reassignment 
to her of the interest in the leased property and therefore 

does not have record title to the property. Kelstrups 

mistake record title with legal title. The two are not 

synonymous. A property owner can have valid legal title to 

property without recordation. The rule is an unrecorded deed 

affecting title to land is valid between the parties. "An 

unrecorded instrument is valid as between the parties and 

those vrho have notice thereof." Section 70-21-102, MCA. 

Recordation is a device to establish priority, but has 

nothing to do with conveying title. Lawler v. Gleason (Cal. 

1955), 279 P.2d 70, 73. The purpose of recording instruments 

is to give notice to subsequent purchasers and encumbrancers. 

Unless it is the intention of the parties that recording the 

deed passes title it does not do so, The record does not 

disclose such intention. 

Documents are recorded to alert those persons who might 

change their position in reliance on the condition of title, 

specifically subsequent purchasers and mortgagees. The 

Kelstrups are holdover tenants. Their only interest in the 

property was a rent-free five year lease. They do not fall 

within the scope and protection afforded by the recording 

statutes. Their legal position is not affected whether 

Blakely or the Triple B Trust holds title to the property. 

In any event, Blakely holds title because, though unrecorded, 

she holds a valid deed from Triple B Trust. If, however, the 

trust had conveyed a deed to yet another party who recorded 

it prior to Blakely's recording, that party's interest would 

be superior to Blakely's and Blakely would not be the real 

party in interest. 

Kelstrups' argument that Blakely is not the proper 

party to bring the action due to the earlier assignment j.s 

without merit. The law in Montana for over eighty years has 
been a plaintiff vested with legal title is the real party in 

interest. Genzberger v. Adams (1922), 62 Mont. 430, 436, 205 

P. 658, 660. See also Rae v. Cameron (1941), 112 Mont. 159, 

175, 114 ,P.2d 1060, 1067. Rule 17 (a), M.R.Civ.P. provides, 

"every action shall be prosecuted in the name of the real 

party in interest. . . " 

Requiring the real party in interest to bring an action 

protects a defendant from multiple suits. Allowing this 

judgment to stand will not subject the Kelstrups to multiple 

suits. Triple B Trust divested itself of any interest in the 

property and cannot now be heard to claim it was the injured 

party. To allow it to do so would negate the argument that 

Blakely is the real party in interest. Dismissing this 

action would be tantamount to arguing there is no real party 

in interest, clearly an absurdity. The Kelstrups are subject 

to the same liability regardless of who owns the property. 

They are not entitled to the same protection as a subsequent 

purchaser and certainly are not entitled to more protection. 

The proper party brought the action. The decision of the 

District Court is affirmed. 

We concur: