No. 94-627

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

DAVID M. and CONNIE LARAMIE,

Plaintiffs and Appellants,

v.

DONALD and ELIZABETH JEFFERY,

Defendants and Respondents.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Leonard J. Haxby, Haxby & Somers, Butte, Montana

For Respondents:

Thomas J. Joyce, Hennessey, Joyce, McCarthy &

Wing, P.C., Butte, Montana

Submitted on Briefs: June 20, 1995

Decided: July 17, 1995

Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.

In this action, David M. and Connie Laramie seek specific

performance of a contract in which they agreed to purchase property

from Donald and Elizabeth Jeffery. The District Court for the

Second Judicial District, Silver Bow County, granted the Jefferys'

motion for summary judgment. We affirm.

The dispositive issue is whether summary judgment was proper

because the requirements of 5 30-11-111, MCA, were not met.

In September 1993, Elizabeth Jeffery signed an agreement with

Harrison Avenue Realty to list for sale a leasehold interest on

U.S. Forest Service land in Jefferson County, Montana, including a

cabin and outbuildings. On October 19, 1993, David and Connie

Laramie signed an Agreement to Sell and Purchase the leasehold,

ostensibly also signed by Donald and Elizabeth Jeffery. On October

26, 1993, Elizabeth Jeffery informed Maureen Britton of Harrison

Avenue Realty that, after consulting with her husband, she no

longer wished to go through with the sale.

The Laramies then filed this lawsuit seeking specific

performance of the Agreement to Sell and Purchase. The Jefferys

moved for summary judgment under Rule 56(c), M.R.Civ.P. In support

of their motion, they filed Donald Jeffery's affidavit stating that

he, individually, was the holder of the leasehold interest in the

Jefferson County property, that he did not sign the Agreement to

Sell and Purchase, and that he did not consent to allow Elizabeth

Jeffery to sign that agreement on his behalf.

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In rebuttal, the Laramies produced an affidavit in which their

attorney stated that Maureen Britton had told him that Donald

Jeffery signed either the listing agreement or the Agreement to

Sell and Purchase, but she could not remember which one. The

District Court correctly observed that this affidavit, as hearsay,

would not be admissible into evidence.

As noted by the District Court, an agreement to transfer an

interest in real property must be in writing and subscribed by the

party to be charged or his agent. Section 30-11-111, MCA. Selling

leased land involves a transfer of an interest in real property.

Aye v. Fix (1978), 176 Mont. 474, 478, 580 P.2d 97, 99, appeal

after remand 192 Mont. 141, 626 P.2d 1259.

On appeal, the Laramies argue that Elizabeth Jeffery signed

the Agreement to Sell and Purchase as Donald Jeffery's agent, and

that, at a minimum, she had a right to convey her own interest in

the property by her signature on the agreement. This argument is

without merit. The Laramies have not produced anything which could

be introduced into evidence to rebut Donald Jeffery's sworn

statement that he owned the property individually. Nor have they

produced anything to rebut his sworn statements that he did not

sign the Agreement to Sell and Purchase and that he did not give

Elizabeth Jeffery authority to act as his agent in entering the

agreement.

1n light of § 30-11-111, MCA, we conclude that no issue of

material fact exists as to whether there was a valid agreement to

sell and purchase the leasehold interest. Absent a valid agreement

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signed by the owner of the real property, or by the agent of the

owner authorized in writinq to sign an agreement to sell, the

remedy of specific performance is unavailable. We hold that the

District Court did not err in granting summary judgment to the

Jefferys.

Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to State Reporter Publishing Company and West Publishing Company.

We concur: /

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July 17, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

-11Iuu .J. “MVJ

HAXBY & SOMERS

Bo-*J”“” ‘lMQ

Bultte MT 59702-3008

Thomas J. Joyce

HENNES! , ,

Box H

Butte MT 59703

jEY. JOYCE. MCCARTHY & WING, P.C.

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA