No. 93-297 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

RALPH HAMMER, Plaintiff and Appellant, 

### v. MARY JO HAMMER and HAMMER FARMS, INC., a Montana corporation, Defendants and Respondents. 

## DEC141993

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APPEAL FROM: District Court of the Fifteenth Judicial District, In and for the County of Daniels, The Honorable James Sorte, Judge presiding.

COUNSEL OF RECORD: For Appellant: Loren J. OgToole,OgToole& OgToole,Plentywood, Montana For Respondent: Ken W. Hoversland, Scobey, Montana

Filed: Submitted on Briefs: November 11, 1993 Decided: December 14, 1993Justice Karla M. Gray delivered the Opinion of the Court. Ralph Hammer (Ralph) appeals from portions of a judgment entered by the Fifteenth Judicial District Court, Daniels County, concerning the ownership of certain buildings; no appeal is taken from the judgment insofar as it relates to a grain dryer. We affirm. The dispositive issue before us is whether theDistrict Court erred in concluding that a writing relied on by Ralph is insufficient to establish cotenancy. As a result, we need not address Ralphlsargument that the court erred in also concluding that he isestopped fromasserting any claimagainst thebuildings, because his assertion of error vis-a-vis estoppel is premised on his having established the cotenancy. The conclusion at issue is based on the District Court's findings of fact relating to the evidence presented in support of the cotenancy. Thus, we review herein both findings of fact and conclusions of law. A district court's findings of fact are reviewed to determine if they are clearly erroneous. Steer, Inc.
v. Depltof Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603. That standard encompasses a three-part test of substantial evidence, misapprehension of the effect of the evidence, and whether this Court is left with the definite and firm conviction that a mistake has been committed. Interstate Prod. Credit Assln
v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. Ralph claims a one-third ownership interest in a quonset, a shop and granaries located on real property presently owned by 2Hammer Farms, Inc. Based on that asserted ownership interest, Ralph claims that thedefendantsoustedhim frompossession and, as a result, that he is entitled to a court sale of the buildings and receipt of one-third of the proceeds. Co-defendant Mary JoHammer (MaryJo) is thewidow of Ralphr s deceased brother, Glenn. It is undisputed that Glenn Hammer acquired sole title to the real property upon which thebuildings at issue are located from his parents on October 13, 1967; the warranty deed included all buildings and improvements situated on the real property. Glenn and Mary Jo lived on the property from the date of acquisition until Glenn's death in 1984. Mary Jo continues to reside there. Title to the property is held by codefendant Hammer Farms, Inc. Ralph's claim of a one-third ownership interest in the buildings is based on a writing allegedly executed by Glenn. The writing reads as follows: This is an agreement that Lloyd Hammer [another brother] & Ralph Hammer own each one third interest in the shop, quonset and four wood granaries located SW1/4 of 28 35 50. Also touse location forparking of a trailerhouse. For this theywill pay their share of the insurance and taxes on the above mentioned property. A signature, purportedly that of Glenn A. Hammer, follows. The writing isnot dated, witnessed ornotarized. Itwas not recorded. Ralph testified that Glenn executed thewriting; Mary Jocould not swear that the signaturewas Glenn's. Ralph could not testify as to thedate thewritingwasmade. He testified that "it could bef1 that he had had possession of the writing for twenty to thirty years. NeitherMary Jonor Lloyd Hammerhad ever seen thewritingprior to late 1989. Boiled down totheiressence, theDistrictCourt s findings of fact relating to the writing reflect that the court did not find Ralph's presentation inthat regard credible. A trial court acting
as a finder of fact is in the best position to observe the witnesses, including their demeanorand credibility. Navev. State CompensationMut. Ins. Fund (1992), 254Mont. 54, 58, 835P.2d 706, 709. The weight of evidence and credibility of witnesses are exclusively the province of the trier of fact. State v. Palmer (1991),247Mont. 210, 214, 805 P.2d 580, 582. Here, the District Court determined credibility, weighed the evidence and entered findings based on substantial evidence. The findings do not indicate that the court misapprehended the effect of the evidence; nor does it appear that a mistake has been made. We hold that the District Court's findings of fact relating to thewriting are not clearly erroneous. On the basis of the record and its findings, the District Court concluded that lP[t]hewriting presented by the Plaintiff is insufficient to establish cotenancy." We cannot say that this conclusionwas error as a matter of law. The problems with the writing, insofar as they relate to whether it proved Ralph's ownership interest, are too fundamental to require extended discussion or citation to legal authority. First, the authenticity of the writing is not established here because whether Glenn actually executed the writing is questionable. Even more important is the lack of a date on the writing, or any other evidence fixing sucha date in other thanthevaguest of terms. According toRalph's own testimony, thewriting may have been executed as early as 1963. As noted above, Glenn did not own the real property and buildings until late in 1967. Thus,
even assuming Glenn executed thewriting, hemay have done sowhile the property was still owned by his parents. Moreover, at least
some of thebuildings at issue are, in fact, permanently affixed to the real property and, as such, are legally part of the real property itself. Under fundamental legal principles, the writing does not evidence any of the formalities required to transfer ownership of, and title to, real property. The District Court did not err in concluding that the writing was insufficient to establish a cotenancy in Ralph. Affirmed. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 InternalOperating Rules, thisdecision shall not be cited as precedent and shallbe publishedby its filingasapublic document with the Clerk of the Supreme Court and by a report of its result

We Concur: toMontana Law Week, State Reporter a

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