NO. 92-422 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

LEE MCDONALD, 

Plaintiff and Appellant, 

v. 

IRENE H. JONES, a/k/a IRENE H. PETERSON, 

IRENE H. JONES PARTNERSHIP, a/k/a IRENE H. 

PETERSON PARTNERSHIP; OWNERSHIP OF AMERICA, 

a Texas corporation, and all other persons F 

unknown claiming or who might claim any right, 

title, estate or interest in or lien or 

encumbrance upon the real property described 

in the Complaint adverse to Plaintiff's 

ownership or any cloud upon Plaintiff's title 

thereto, whether such claim or possible claim 

be present or contingent, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nancy K. Moe, Ellingson & Moe, 

Missoula, Montana 

For Respondent: 

David L. Pengelly, Knight, Maclay & Masar, 

Missoula, Montana 

Filed: 

Submitted on Briefs: January 28, 1993 

Decided: May 11, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Lee McDonald appeals from an order of the Fourth 

Judicial District Court, Missoula County, granting summary judgment 

and finding a certain warranty deed from respondent Irene H. Jones 

(now Irene Peterson but referred to as Jones) to Ownership of 

America void, and a certain tax deed issued to McDonald by Missoula 

County void. McDonald also appeals a subsequent order denying his 

motion to reconsider. 

We affirm. 

McDonald raises three issues on appeal. We find the following 

issue to be dispositive: 

Did the District Court err in finding that the grantor did not 

comply with the Montana Subdivision and Platting Act, thereby 

invalidating the warranty deed? 

Irene H. Jones owned 12.63 acres of land in the Seeley Swan 

valley. The land contained various improvements, including a house 

built by Jones. Ownership of America approached Jones and 

requested that she convey two undeveloped acres from the 12 acre 

tract for a promotional scheme in exchange for some of Ownershiprs 

stock. There was no agreement specifying which two acres were to 

be conveyed. A friend of Jones, Vernon H. Peterson, prepared a 

warranty deed conveying title. On April 13, 1981, Jones executed 

a warranty deed to Ownership. The deed contained the following 

land description: 

That portion of Lot numbered Seven (7) of Section Six (6) 

in Township Twenty (20) North of Range Sixteen (16) West 

of Montana principal ~eridian, Montana, lying West of 
Federal Aid Secondary 209 right-of-way and containingtwo 

acres more or less and further accurately described by 

plat on file with the party of the first part and party 

of the second part. Party of the first part herein 

reserves all minerals under the above description. 

Jones and Ownership agree that the deed intended to convey two 

undeveloped acres out of the larger 22.63 acres owned by Jones. 

However, the deed did not specify which two undeveloped acres were 

to be conveyed. No plat was ever filed with the Missoula County 

Clerk and Recorder. The Missoula County Clerk and Recorder's 

office, following internal office procedures, erroneously treated 

the conveyance as a transfer of 12.63 acres, and not as two acres, 

as intended by Jones and Ownership. The Missoula County Treasurer 

changed the tax records upon recordation of the deed and sent all 

further tax notices for the entire 12.63 acre parcel to Ownership, 

who failed to pay any of the real property taxes. On July 20, 

1983, Missoula County took a tax sale certificate on the entire 

12.63 acre parcel due to nonpayment of taxes. Jones never received 

any notice regarding the pending tax sale. 

On August 13, 1985, prior to taking a tax deed to the 12.63 

acres, Missoula County assigned its interest in the tax certificate 

to Lee McDonald for $738.92, which represented unpaid taxes, 

interest, and penalties. On April 28, 1986, and on May 5, 1986, 

McDonald published a notice of application for tax deed in the 

local newspaper. The notice contained the following legal 

description: !#All of Gov't Lot 7 lying West of Federal Aid 

Secondary #209 R/W in SW4 (Plat E) of 6-20N-16W, M.P.M." On 

July 11, 1986, McDonald filed an affidavit stating that the 
property was unoccupied at the time of his application for tax deed 

on the property but acknowledged that the property may be occupied 

occasionally during the summer. 

On August 27, 1986, the Missoula County Treasurer executed a 

tax deed to McDonald as grantee, which contained the following 

legal description: 

Book 163 Page 228 SUID #1078409 

Pt of Lot T W of R/W in SW4 Plat E Section 6 

 own ship 20 Range 16 12.63 Acres 

That portion of lot numbered Seven (7) of Section Six (6) 

in Township Twenty (20) North of Range Sixteen (16) West 

of Montana Principal Meridian, Montana, lying West of 

Federal Aid Secondary 209 Right-of-way and containingtwo 

acres more or less and further accurately described by 

Plat on file with the party of the first part and party 

of the second part. Party of the first part herein 

reserves all minerals under the above description. 

McDonald then published a Notice of Claim of Tax Title in the 

Missoula newspaper on August 25, 1986, and again on ~eptember 1, 

1986. The legal description used in the publication is identical 

to the legal description used in the original notice of application 

for tax deed. 

McDonald never visually inspectedthe premises to determine if 

the property was unoccupied before acquiring the tax deed; he did 

not attempt to notify personally any persons who may have been 

occupying the property during the summer of 1986; he did not 

attempt to contact anyone other than a local handyman to determine 

who was in possession of the property and who was allowing guests 

to enter the property. 
Ownership contacted McDonald and agreed to give him a quit 

claim deed to the property. The quit claim deed was prepared by 

McDonald and contained a different legal description than that used 

in the warranty deed from Jones to Ownership. The deed deleted all 

reference to the two acre limitation contained in the warranty 

deed. In addition, the word llallll was inserted at the beginning of 

the legal description. McDonald had actual knowledge of the two 

acre limitation contained in the Jones-to-Ownership warranty deed, 

but he chose to ignore the limitation. McDonald did not pay any 

consideration to Ownership for the quit claim deed. McDonald then 

conveyed a separate piece of property to Ownership for $2000. 

In a series of deeds that were executed after the deed to 

Ownership, Jones, now married to Vernon Peterson, conveyed her 

entire interest in the 12.63 acre parcel to Irene H. Peterson 

Limited Partnership, a North Dakota limited partnership. Jones has 

paid all of the real estate taxes on the entire 12.63 acre parcel 

from 1986 through 1990 and has been in possession of the property 

at all times throughout the litigation. 

On September 13, 1988, McDonald filed a quiet title action in 

District Court. On January 22, 1992, Jones filed her motion for 

summary judgment. On April 27, 1992, the District Court issued its 

findings of fact, conclusions of law, and order granting Jones' 

motion for summary judgment. On May 14, 1992, McDonald filed a 

motion for reconsideration, which was denied by the District Court 

on June 15, 1992. McDonald appeals both orders to this Court. 
Did the District Court err in finding that the grantor did not 

comply with the Montana Subdivision and Platting Act, thereby 

invalidating the warranty deed? 

The granting of summary judgment is proper only if it is shown 

that there is no genuine issue of any material fact and that the 

moving party is entitled to summary judgment as a matter of law. 

Rule 56(c), M.R.Civ.P. Summary judgment may be granted where the 

party opposing the motion fails to prove the existence of any 

genuine issue of material fact. Bills v. Hannah, Inc. (1988), 230 

Mont. 250, 253-54, 749 P.2d 1076, 1079. 

Section 76-3-104, MCA (1979), states that a subdivision shall 

be comprised of parcels less than 20 acres which have been 

segregated from the original tract. Jones' warranty deed to 

Ownership was an attempt to subdivide a parcel of land by 

segregating a two-acre parcel from the original 12.63 acre tract. 

The attempted subdivision violated the Montana Subdivision and 

Platting Act because the Act requires that a plat be filed of 

record before title to subdivided ground can be sold or transferred 

in any manner. Section 76-3-301(1) , MCA (1979) . In addition, the 

Act requires that the clerk and recorder reject any instrument that 

purports to transfer title to a parcel that is required to be 

surveyed. Section 76-3-302, MCA (1979). 

The record shows that the parties intended to transfer only 

two acres of undeveloped land out of the 12.63 acres of land. No 

plat was recorded describing the two acres, even though the deed 
did make a reference to such a plat. The deed should have been 

rejected. Section 76-3-302, MCA. 

When interpreting the validity of deeds, the general rule is 

that a deed will be liberally construed to give it effect, rather 

than to render it a nullity. Peterson v. Taylor (1987) , 226 Mont . 

400, 404, 735 P.2d 1120, 1123. A deed will be considered void for 

uncertainty if the identity of the property can not be ascertained 

by reference to extrinsic evidence. Peterson, 735 P.2d at 1123. 

We consider the property description contained in a deed adequate 

if it contains sufficient information to permit the identification 

of the property to the exclusion of all others. Peterson, 735 P.2d 

at 1123. 

In this instance, the parties failed to come to a meeting of 

the minds regarding which two acres of land Jones was to convey to 

Ownership. No extrinsic evidence was available for the District 

Court to identify which two acres the parties contemplated to be 

conveyed. Therefore, we hold that the deed was void for 

uncertainty, Because the warranty deed was ineffective at 

conveying any portion of the 12.63 acres, the subsequent deed from 

Ownership to McDonald conveyed no interest in the property. 

Erickson v. First National Bank of Minneapolis (1985), 215 Mont. 

350, 358, 697 P.2d 1332, 1337. We hold that the ~istrict Court was 

correct as a court sitting in equity in holding that the original 

conveyance between Jones and Ownership was void for failure to 

comply with the Montana Subdivision and Platting Act. 
As a result of our holding, we need not address the additional 

issues raised by McDonald. 

Because there is no genuine issue of material fact, we affirm 

the decision of the District Court in granting summary judgment as 

a matter of law in favor of Jones. 

Justice 

We concur: 

I 
May 11, 1993 

CERTIFICATE OF SERVICE 

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

named: 

Nancy K. Moe 

Ellingson & Moe 

P.O. Box 9198 

Missoula, MT 59807 

David L. Pengelly 

Knight, Maclay & Masar 

P.O. Box 8957 

Missoula, MT 59807 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF, MONTAN4