No. 85-172 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

YOLANDA BLAKELY, Plaintiff and Respondent,

REIDER E. KELSTRUP and DELORES J. KELSTRUI?

## , Defendantsand Appellants.

APPEAL FROM: DistrictCourtof the Eighteenth Judicial District, Inand for theCountyof Gallatin, TheHonorable 

### Joseph B. Gary, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Morrow, Sedivy & Bennett; Lyman 

### H. Bennett, Bozeman, Montana

ForRespondent: 

### Wayne Jennings, Bozeman, Montana

Submitted 

### on briefs: Aug. 15, 1985 Decided: October 22, 1385Mr. JusticeJohn 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 topossession of two mobile homes and three acresof land, 

### moreor 

### less, on which thehomes 

### were situated. Atthe subsequent hearing on damages the court awarded plaintiff treble damages of $4,500 pursuant to 

### 5 70-27-207, MCA, for reasonable rentof thetrailerhomes 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 Kelstrup, rent-free for fiveyears. During the leaseperiod 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 tovacate the premises and Blakely filed a complaint against them under Montana's forceable entry and detainer statutes, Title 70, ch. 27, MCA. Kelstrups defended, allegingBlakely

was not theproper party tobring 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 ininterestbecause she did not record thereassignmentto 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 titleto propertywithout 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 todo with conveying title. Lawler v. Gleason (Cal. 1955), 279 P.2d 70, 73. The purpose of recording instruments 

### istogive notice tosubsequent purchasers and encumbrancers. Unless 

### it 

### isthe intention of the parties that recording the deed passes title 

### it does not do so, The record does not disclose such intention. Documents arerecorded toalertthose 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 titlebecause, though unrecorded, she holds 

### a valid deed from TripleB Trust. If,however, the trust had conveyed a deed toyet another party who recorded it prior toBlakely's recording, thatparty's interestwould 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 inMontana for over eighty years has

### been a plaintiff vested with legal title 

### is 

### the realparty in interest. Genzberger v. Adams (1922), 62 Mont. 430, 436, 205 P. 658, 660. See alsoRae 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 ininterest. 

# . . " Requiringtherealparty in interesttobring an action protects a defendant from multiple suits. Allowing this judgment to stand willnot subject theKelstrups tomultiple suits. Triple B 

### Trustdivested itself of any interest inthe property and cannot now be heard toclaim it was the injured party. To allow 

### it todo sowould negate the argument that Blakely is the real party in interest. Dismissing this action would be tantamount toarguing there is 

### no real party ininterest, clearly an absurdity. The Kelstrups are subject to the same liability regardless of who owns the property. They are not entitled tothe same protection asa subsequent purchaser and certainly are not entitled tomore protection. The proper party brought the action. The 

### decision of the District Court is affirmed.

We 

### concur: