97-169

 No. 97-160

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 117N

 IN RE THE MATTER OF THE ESTATE

 OF WILLIAM D. BANDEROB,

 Deceased. 

 APPEAL FROM: District Court of the Thirteenth Judicial District,

 In and for the County of Yellowstone,

 The Honorable G. Todd Baugh, Judge presiding.

 COUNSEL OF RECORD:

 For Appellant:

 Wendell Stanton, Billings, Montana

 For Respondent:

 Robert L. Stephens, R.L. Stephens, Ltd., Billings, Montana

 Submitted on Briefs: April 16, 1998

 Decided: May 5, 1998

 Filed:

 __________________________________________

 Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996

Internal Operating Rules, the following decision shall not be cited as precedent

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but shall be filed as a public document with the Clerk of the Supreme Court

and shall be reported by case title, Supreme Court cause number and result to

the State Reporter Publishing Company and to West Group in the quarterly

table of noncitable cases issued by this Court.

¶2 This is an appeal by Darlene Durand (Durand) from the District Court's

judgment entered on January 13, 1997, and from the court's underlying

findings of fact and conclusions of law entered on December 31, 1996,

declaring void certain transactions by Juanita Alvarez (Juanita), personally,

and, purportedly, as personal representative of the estate of William D.

Banderob (the estate). We affirm in part and reverse in part.

 Issues

¶3 We restate the issues on appeal as follows:

¶4 1. Are the findings of fact of the District Court supported by

substantial evidence and are the court's conclusions of law correct?

¶5 2. Did the court err in ordering Roy Watson, individually, to remove

or satisfy all mortgage indebtedness with respect to the subject real property?

 Background

¶6 The decision appealed from followed an evidentiary hearing on the

current personal representative's petition to set aside and to declare void

various buy and sell agreements, an assignment of proceeds and a quit claim

deed executed by Juanita with respect to real property of the estate, described

as Township 2 North, Range 28 East, M.P.M., Yellowstone County, Montana,

Section 33: SE¬SE¬, E«SW¬SE¬, NW¬NE¬ and SW¬NE¬ (the real

property).

¶7 William D. Banderob died in 1986. Intestate probate proceedings were

commenced with the appointment of Clara Garza (Garza), the decedent's

daughter, as personal representative. Subsequently, it was determined that Mr.

Banderob died testate and a second probate proceeding under another cause

number was initiated by Juanita, the decedent's stepdaughter and devisee

under his will. From June 1988 until October 13, 1993, both probate

proceedings coexisted, and there were two personal representatives. On

October 13, 1993, then presiding Judge William J. Speare signed an order

relieving Garza of responsibility as personal representative and appointing

Juanita as the sole personal representative of the estate. On October 27, 1993,

letters testamentary were issued by the clerk of the court to Juanita.

¶8 On April 20, 1994, Juanita resigned as personal representative, having

been incarcerated at the State of Montana Women's Correction Center for

some time prior to that date. Her daughter, Angelina Alvarez (Angelina), was

appointed successor personal representative of the estate on June 20, 1994. 

¶9 In attempting to administer the estate, Angelina determined that a

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certain assignment of proceeds of sale of land in favor of Attorney Jack Sands

(Sands) operated as a cloud upon the title to the real property. She further

determined that certain buy and sell agreements in favor of Roy Watson

(Watson) and Durand and in favor of Sands executed by Juanita as seller and

covering the real property had never been performed by any of the parties with

whom Juanita had dealt. One of these buy and sell agreements resulted in

Juanita executing a quit claim deed covering the real property and dated

October 13 or 14, 1993, to the Pryor Hill Ranch Trust (the Trust). Juanita

purportedly signed this deed as personal representative of the estate. The deed

does not recite that it was executed and delivered in exchange for any

consideration.

¶10 It appears that this conveyance followed as a result of the buy and sell

agreement dated October 2, 1993, in which Watson and Durand agreed to buy

the real property from Juanita. This buy and sell agreement was signed by

Juanita individually, and she personally retained the earnest money payment

of $100. Moreover, the court found that the other consideration for this buy

and sell agreement, part of which included a mobile home to be delivered to

Juanita, was to be paid to or for her benefit personally. The trial court found

that Watson, Durand and the Trust were apparently the same for purposes of

this case. This finding, as regards Durand and the Trust, has not been

challenged on appeal.

¶11 To clear title to and to preserve the estate real property, Angelina

rescinded the buy and sell agreements and, in October 1994, petitioned the

court to void the quit claim deed and the assignment of proceeds. On October

27, 1994, following the filing of Angelina's petition, the court ordered Watson

and Durand, as trustees of the Trust, to appear and show cause why the

October 13 or 14, 1993 quit claim deed should not be canceled. Durand, as

a trustee of the Trust, filed her response to Angelina's petition and counterclaimed,

requesting that the court declare the quit claim deed valid and require

specific performance of the buy and sell agreement, or, in the alternative,

award actual damages plus reasonable costs and attorney fees.

¶12 Subsequently, Sands was joined in Angelina's petition in connection

with the August 22, 1992, assignment to him of proceeds of sale of the real

property and with respect to a December 31, 1992, buy and sell agreement in

which he agreed to purchase the real property. Both of these documents,

signed by Juanita individually, resulted from Juanita's attempt to secure and

then to discharge past due and future obligations for rent which she personally

incurred and expected to incur in leasing a residence from Sands. (Sands has

not appealed the District Court's decision against him; accordingly, we refer

to this aspect of the case in our further discussion only to the extent

necessary.)

¶13 On March 21, 1995, the real property was mortgaged by the Trust to

Associates Financial Services Co. of Montana, Inc. The mortgage was

executed by Durand as trustee. A portion of the mortgage proceeds was

tendered to Sands under the assignment, but the check was not cashed. Other

sums were tendered to the attorney for the estate for fees.

¶14 Angelina's petition was tried to the court on December 8 and 13, 1995. 

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Angelina appeared by counsel and testified personally; Sands appeared,

represented himself, and testified; and Durand and the Trust appeared by

counsel. Neither Durand nor Watson testified.

¶15 On the documentary evidence and testimony presented, the court found

that during the time that there were two personal representatives, Juanita in her

individual capacity, but not as personal representative of the estate, entered

into several transactions including: the assignment of proceeds of sale and the

buy and sell agreement to Sands and the buy and sell agreement with Durand

and Watson. The court also found that on October 13 or 14, 1993, Juanita,

purportedly as personal representative, executed and delivered a quit claim

deed for the real property to the Trust. Finally, on October 20, 1993, Juanita,

individually, also executed a buy and sell agreement covering the real property

in favor of a couple named Forsyth; however, the Forsyths were not joined in

these proceedings.

¶16 The court concluded that at the time Juanita executed the buy and sell

agreements to Watson and Durand and to Sands that she was not acting as a

personal representative but, rather, was acting in the context of a beneficiary

of the estate with an expectation of a future inheritance. The court also

determined that Juanita's assignment in favor of Jack Sands was for her

personal obligation and not for any estate obligation. Accordingly, the court

declared the assignment of proceeds not to be a lien on estate property and the

buy and sell agreement with Sands and buy and sell agreement with Watson

and Durand and the quit claim deed to the Trust void.

¶17 The court also determined that Juanita executed only one document

as personal representative of the Banderob estate, that being the quit claim

deed to the Trust. However, the court went on to conclude that this

conveyance was not supported by any consideration flowing to the estate. 

Rather the court determined that the consideration for the deed was to go

directly to Juanita and that the consideration was not even tendered until 1995,

well after Angelina was appointed personal representative and after she had

notified the various parties that the estate was declaring the quit claim deed

null and void. The court concluded that regardless of whether the Trust could

have legally paid Juanita as the sole heir of the estate to purchase the real

property from the estate, the Trust did not give the consideration promised

much less in a timely manner. As a result, the court concluded that the quit

claim deed was void for failure of adequate consideration. From the District

Court's judgment and these findings and conclusions, Durand and the Trust

appeal.

 Standard of Review

¶18 We review a district court's findings of fact to determine whether they

are clearly erroneous. A district court's findings are not clearly erroneous if

they are supported by substantial evidence; if the trial court has not

misapprehended the effect of the evidence; and if our review of the record

leaves us without a definite and firm conviction that a mistake has been

committed. We review a district court's conclusions of law to determine

whether the court's interpretation of the law is correct. Matter of the Estate

of Dern Family Trust (1996), 279 Mont. 138, 144, 928 P.2d 123, 127. In this

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case, we conclude that the court's findings of fact are not clearly erroneous

and, with one exception, that the court's conclusions of law are correct.

 

 Discussion

 I.

¶19 Are the findings of fact of the District Court supported by substantial

evidence and are the court's conclusions of law correct?

¶20 It is axiomatic that to be valid, a contract requires identifiable parties

capable of contracting. Section 28-2-102(1), MCA. Moreover, one cannot

convey better title than that with which one is vested. Section 70-1-519,

MCA. A personal representative has the power to contract to sell and to sell

real property of an estate. Section 72-3-613(23), MCA. However, to acquire

the powers and undertake the duties and liabilities of a personal representative,

a person must be appointed by order of the court or clerk, qualify and be

issued letters. Administration of an estate is commenced by the issuance of

letters. Section 72-3-103, MCA. Here, it is undisputed that Juanita had not

been appointed personal representative nor had she been issued letters

testamentary at the time she executed the buy and sell agreement as seller to

Watson and Durand and to Sands as purchasers. Accordingly, she,

individually, was not capable of entering into a contract for the sale of the real

property on behalf of the estate, nor was she capable of assigning the proceeds

from the sale of any such agreement or otherwise encumbering estate property. 

The District Court correctly declared these various buy and sell agreements

void and it correctly determined that the assignment did not constitute a lien

against the real property.

¶21 As to the quit claim deed to the Trust, the uncontradicted testimony at

the hearing was that the estate received no adequate consideration from

Juanita's execution and delivery of the deed, and the court so found. 

Substantial evidence in the record supports this finding. Accordingly, the

court correctly declared the deed to be a nullity. See Eliason v. Eliason

(1968), 151 Mont. 409, 417, 443 P.2d 884, 889 (where there is no

consideration for a deed moving from the grantee to the grantor and where the

question of a gift is not at issue, the deed is null, void and subject to

cancellation).

¶22 We have carefully reviewed the record and have considered, but are

unpersuaded by, the various arguments raised by Durand in her briefs. We

conclude that, with respect to this issue, the trial court's findings of fact are not

clearly erroneous and that its conclusions of law are correct.

 II.

¶23 Did the court err in ordering Roy Watson, individually, to remove or

satisfy all mortgage indebtedness with respect to the subject real property?

¶24 The March 21, 1995 mortgage to Associates Financial Services Co. of

Montana, Inc. was executed by Durand as trustee on behalf of the Trust.

Durand was served and appeared on behalf of the Trust. However, it is

undisputed that Roy Watson was not personally served with Angelina's

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petition. While, on these facts, the District Court had jurisdiction to require

the Trust and Durand and Watson, as trustees, to remove and satisfy all

existing mortgage indebtedness incurred by the Trust against the real property,

it had no jurisdiction to require Watson to do so in his individual capacity as

he was not joined as a party to or served, individually, with Angelina's

petition. See Kessinger v. Matulevich (1996), 278 Mont. 450, 460, 925 P.2d

864, 870 ("A person who is not a party to the action, cannot be a party to the

judgment"). To the extent that the District Court's judgment requires Watson,

individually, to satisfy the March 21, 1995 mortgage, it is reversed. 

¶25 On appeal Durand contends that Watson was not even a trustee of the

Trust but was in fact a beneficiary of that Trust. The problem with this

argument is that there was nothing before the District Court supporting this

contention and we will, accordingly, not address this argument further. See

State v. MacKinnon, 1998 MT 78, ¶ 15, 55 St.Rep. 331, ¶ 15 (parties on

appeal are bound by the record and may not introduce extraneous information

into the proceedings).

¶26 The District Court's judgment dated January 13, 1997, is affirmed in

all respects, except to the extent that the court required Roy Watson,

individually, to remove and/or satisfy of record all existing mortgage

indebtedness incurred by Darlene Durand and the Trust and secured by the

March 21, 1995 mortgage in favor of Associates Financial Services Co. of

Montana, Inc. That portion of the court's judgment is reversed.

¶27 Affirmed in part and reversed in part.

 /S/ JAMES C. NELSON

We Concur:

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

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