No. 86-385 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ROBERT W. BENSON and MARGARET BENSON 

GREENE, individually and ROBERT W. 

BENSON, as personal representative of 

the Estate of Clara Worthen Benson, 

Plaintiffs and Appellants, 

-vsGEORGE W. DIEHL and ELIZABETH DIEHL; 

THE DIEHL RANCH COMPANY, a corp., 

and THE DIEHL COMPANY, A Montana corp., 

the heirs of GEORGE W. PADBURY; W.T. 

McCULLOUGH; and KAIZER CEMENT AND GYPSUM 

CORP., et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morrison Law Offices; Frank Morrison, Sr. argued, 

Helena, Montana 

Robert M. Peterson argued, Boulder, Montana 

For Respondent: 

Gough, Shanahan, Johnson & Waterman; Ward A. Shanahan 

argued, Helena, Montana (Kaiser) 

Harrison, Loendorf & Poston; James T. Harrison, Jr., 

Helena, Montana (Diehl) 

Hughes, Kellner, Sullivan & Alke; John L. Alke, 

Helena, Montana (McCullough) 

Submitted: June 3, 1987 

Decided: August 21, 1987 

Filed: AUG 21 1987 
Mr. Justice John C. Harrison delivered the Opinion of the 

Court. 

Plaintiffs appeal from the order of the Fifth Judicial 

District in and for Jefferson County, Montana, granting 

defendants' motion for summary judgment. We affirm the order 

of the District Court. 

The plaintiffs/appellants, Bensons, instituted a quiet 

title action to approximately 120 acres in Jefferson County. 

The record owner of the property, both surface and mineral 

rights, is the defendant, Kaiser. The property was acquired 

from Diehl, by warranty deed recorded October 3, 1978. 

Kaiser has been in possession of the property since 1977 

under a lease option agreement. 

Bensons base their claim on a warranty deed in the 

chain of title dated January 18, 1944 conveying the property 

from Wyman P. Benson and Clara Worthen Benson to George 

Padbury, Jr., George Diehl and W. T. McCullough. The deed 

has no reservation of mineral interest. Bensons claim this 

deed, which was not recorded until August 21, 1950, was 

materially altered. They claim the original deed conveyed 

land to George Padbury only, and reserved the mineral rights 

to Bensons. McCullough is the only party to this deed who is 

still living. The whereabouts of the original deed is 

unknown, although Bensons have a document that they claim is 

the unsigned copy of the deed they claim was altered. This 

document contains a mineral reservation and George Padbury is 

the sole grantee. 

Plaintiff Robert Benson claims his father, Wyman 

Benson, told him of the mineral reservation in 1945. Wyman 

died in 1964. His estate was probated in Idaho, but the 

mineral interest was not claimed as an asset. Clara Benson, 

Robert's mother, who discovered the carbon copy of the 
claimed deed, died in 1981. Her estate also was probated in 

Idaho, and again the mineral reservation was not claimed as 

an asset in her estate. 

Sometime after the deed was recorded, the various 

grantees engaged in partnership business activities involving 

their properties. Eventually the property was mortgaged and 

a number of quit claim deeds were filed. The District Court 

did not find, however, that any of this activity pointed to a 

material alteration of the deed or to any type of a caveat to 

a title examiner that the deed had been altered. 

It is from these facts the District Court concluded 

Kaiser was entitled to summary judgment. Bensons appeal. 

Summary judgment is proper when there are no genuine 

issues of material fact. Rule 56 M.R.Civ P., Cereck v. 

Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 509. In 

determining the appropriateness of summary judgment, the 

court may review the complete file to determine whether there 

is a genuine issue of material fact. Reagan v. Union Oil Co. 

of Calif. (Mont. 1984), 675 P.2d 953, 41 St.Rep. 131. It is 

incumbent on Bensons to present evidence of a "material and 

substantial nature" which raises a genuine issue of fact in 

order to defeat the summary judgment motion. B.M. by Berger 

v. State of Montana (Mont. 1985), 698 P.2d 399, 401, 42 

St.Rep. 272, 274. 

We will consider whether there are genuine issues of 

material fact precluding entry of summary judgment, and 

whether the District Court erred in its application of the 

doctrine of laches. 

The foregoing rules clearly prescribe the parameters 

within which we analyze summary judgment. The facts on which 

the trial court based its ruling are not in dispute. The 

documents purporting to prove that the deed was altered and 

therefore could not have passed title to the mineral rights 
to Kaiser, consist of an unsigned, carbon copy warranty deed 

including a mineral reservation that is not on the recorded 

deed. Robert Benson testified his father, Wyman, told him 

about the mineral reservation in 1945, well before the deed 

was recorded. Wyman died in 1946, his estate was probated in 

Idaho, but the mineral interest was not claimed as an asset. 

Nor was it claimed when Robert's mother's estate was probated 

after her death in 1981. There is no question Kaiser relied 

on the public record, which contains a warranty deed with 

property descriptions that accurately reflect the Bensons' 

homesteads. The deed was executed and notarized January 18, 

1944, but not recorded until August 1950. Bensons argue, 

however, the summary judgment order leaves numerous fact 

questions unanswered. They contend the District Court 

ignored Benson family records, which establish the 

negotiation and sale of the Benson homesteads to George 

Padbury only, and a jury should be allowed to determine which 

deed is the true deed. 

The District Court properly concluded the Benson family 

records did nothing more than raise a suspicion that the 

recorded deed was altered. A suspicion, regardless of how 

particularized it may be, is not sufficient to sustain an 

action or to defeat a motion for summary judgment. 

Unsupported conclusory or speculative statements do not raise 

a genuine issue of material fact. The trial court has no 

duty to anticipate possible proof. Gates v. Life of Mont. 

Ins. Co. (Mont. 1982), 638 P.2d 1063, 1066, 39 St.Rep. 16, 

19. 

The overriding issue is whether the public has a right 

to rely on the public record. Bensons appear to be arguing 

that a party cannot expect to rely on the public record, even 

after a document has been of record for more than 30 years. 

At the same time, however, they assumed it was placed on the 
public record to their benefit. We find these two positions 

to be contradictory, and agree with the District Court which 

stated: 

To sustain Plaintiff's position in this 

case would require the Court to 

completely ignore the recording statutes . . . To hold otherwise would shake the 

very foundation of established law and 

standards applicable to record titles to 

real property in Montana. 

Bensons cannot have it both ways. Either the public 

record can be relied on by all parties or it cannot. 

Reversing the District Court, of course, would give a jury 

the opportunity to determine whether the deed was altered. 

Such a reversal also would cast doubt as to the validity of 

every recorded deed and wreak havoc in the county courthouse. 

More importantly, it would do nothing to resolve the issue of 

the parties' rights under the deed in question. 

Montana's statutory scheme provides that instruments 

that are made with intent to defraud are "void as against 

every purchaser or encumbrancer for value of the same 

property or the rents or profits thereof." Section 

70-20-401, MCA. The statutes, however, provide protection 

for purchasers in good faith and for value in § 70-20-404, 

MCA : 

The rights of a purchaser or encumbrancer 

in good faith and for value are not to be 

impaired by any of the foregoing 

provisions of this part. 

It appears Bensons want to find the deed void pursuant 

to § 70-20-401, MCA, while denying Kaiser the protection of 5 

70-20-404, MCA, arguing it is not a bona fide purchaser. 

This is inconsistent with the facts. The District Court 

found "nothing in the abstract of title or the public record 

. . . which would defeat Kaisers's status as a buyer in good 
faith without notice." The statute cannot be read, as 

Bensons argue, to affect the status of a grantee as a bona 

fide purchaser in good faith for value. It must be read to 

protect the grantee who is bona fide purchaser for value. 

Kaiser purchased the property in good faith by relying on the 

public record. Nothing on the record indicated any material 

alteration to the deed which would put Kaiser on inquiry. 

A person, in dealing with another in 

respect to real estate, may rely on the 

record title to the property, in the 

absence of actual knowledge of the title 

in fact, or of facts sufficient to put 

him on inquiry in respect thereto. If 

this were not so, no one would be safe in 

purchasing real estate, or in loaning 

upon the strength of it as security. 

Kirgin v. Kirgin (1949), 123 Mont. 34, 38, 207 P.2d 557, 559. 

The District Court found nothing that would point to a 

material alteration of the deed or any type of caveat to a 

title examiner that the deed had been altered. There is no 

evidence of any matter that would put a reasonable person on 

notice to inquire further. In short, there is nothing to 

suggest that Kaiser is not a bona fide purchaser in good 

faith and for value protected by § 70-20-404, MCA. Under the 

facts of this case, this result obtains whether or not the 

deed was altered. 

Bensons argue the District Court should not have 

applied the doctrine of laches. While this doctrine is not 

sufficient in itself to sustain Kaiser's motion for summary 

judgment, the delay by Bensons to assert their claimed rights 

is of such duration and character as to render enforcement 

inequitable. Clayton v. ~tlantic Richfield (Mont. 1986), 717 

P.2d 558, 43 St.Rep. 717; Brabender v. Kitt (1977), 174 Mont. 

63, 568 P.2d 547. There is no absolute rule pertaining to 

the doctrine of laches and each case is determined upon its 
own special circumstances. Matter of Estate of Wallace 

(19801, 186 Mont. 18, 25, 606 P.2d 136, 140. 

Bensons contend there must be a showing of negligence 

for the doctrine of laches to apply. While it may be true 

that Bensons had no duty to expunge a void deed to protect 

the public at large, they slept on their rights by not 

ascertaining the status of their property for nearly 40 

years. If they believed the deed had been altered, they 

should have acted to protect their interest, since the 

alteration they claim was made clearly worked to their 

disadvantage. However, for more than 40 years Bensons 

assumed the deed had not been altered and that they retained 

the mineral interest in the property. It was during this 

period of time they slept on their rights, which militates 

for application of the doctrine of laches. Robert Benson 

testified his father informed him of the interest in 1944 and 

again in 1945. He assisted in the probate of his father's 

estate, yet did not list the property on the inventory and 

appraisement list in 1964. While personal representative of 

his mother's estate, Robert Benson again failed to list the 

property in 1981. Apparently he made no effort on either 

occasion to ascertain the correct status of the property. We 

repeat the adage that the concept of laches is fundamental to 

the notion of responsibility in general, and aids the 

vigilant who do not sleep on, or neglect, their rights. 

We also look to "unexplained delay which would render 

enforcement of the asserted right inequitable.'' Peterson, 

684 P. 2d at 1066. Bensons would have us find the District 

Court in error because it applied the doctrine of laches by 

deciding numerous genuine issues of material fact. These 

facts, however, were not in dispute. The District Court 

found no evidence in the record sufficient to explain 

Bensons' delay. Nor do we. Absence from the state does not 
excuse one from sleeping on his rights. Determination that 

mineral interests are unprofitable is irrelevant to the issue 

of delay in asserting one's ownership rights. If the deed 

had been altered, Bensons' vigilance would have unearthed 

that fact long ago. Bensons, however, predicate their entire 

argument against application of the doctrine of laches on the 

fact the deed had been altered. Thus their position with 

respect to application of laches is untenable. 

To permit Bensons to come forward now to claim property 

that they have neglected for over 40 years would work a grave 

injustice on Kaiser. Kaiser purchased the property, 

correctly assuming it had clear title, and proceeded with 

well announced plans to mine it. The District Court did not 

err in applying laches, or in granting summary judgment. 

We affirm. 

We Concur: 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

The Court should first identify the true nature of the 

instrument that is before us in this case. We are not 

dealing with a void deed; we are instead dealing with an 

alleged "altered instrument." There are sharp differences in 

legal consequences which result from an altered instrument, 

especially as concerns the nonconsenting party. It was 

explained in Smith v. Barnes (1915), 51 Mont. 202, 211, 212; 

149 P.963: 

. . . Technically speaking, an "alteration" occurs 

when a written contract is intentionally changed in 

material respect after execution, by or at the 

insistence of one of the parties, and without the 

consent of the other . . . The legal effect of an 

alteration is to extinguish all the executory 

obligations of the contract in favor of the parties 

responsible as against the parties who do not 

consent (Revised Codes 5 5069) ; and the appellant, 

if the change was an alteration procured by him, 

could not maintain this action, nor maintain any 

action, upon the contract, either in its original 

or its altered form (citing authority). But -- the 

nonconsenting party loses no right. --- He is not 

obliged - to rescind - or repudiate the contract -- as it 

actually was -- made. He may ignore the change, 

because it does --- not expyess his contract, -- and hold 

the other party -- to the contract according -- to its 

original terms (citing authority); and this, a 

right peculiar to the nonconsenting party in the 

case of an alteration, is the final effect of a 

spoliation as to both parties. The contract stands 

as originally made, without regard to the change 

(citing authority). So that, whether the change in 

question was an alteration or a spoliation, the 

right of Barnes to do what he seeks to do, and what 

the allegations of fraudulent procurement were 

clearly intended to entitle him to do, cannot be 

assailed. 
It is insisted in this connection, however, 

that Barnes cannot stand upon the contract as it 

was actually made, because of ratification or 

waiver. This ratification or waiver is claimed 

because of his retention of the first payment after 

knowledge of the change, and 'because of his 

failure to examine his own copy or that of the 

bank, or to do anything to avoid the contract until 

May, 1911'. There is no room for this contention 

in the pleadings. Ratification and waiver are in 

the nature of estoppel, and to be available, they 

must be pleaded when an opportunity to make such 

plea is presented. (Citing authority.) Not only 

- is there -- no such plea, -- but in point -- of fact there 

could be -- none, because the issues were -- made upon 

the character -- of the contract as executed. But 

this claim of ratification or waiver also betrays a 

misconception of Barnes' position. If, as we have 

held, he could ignore the change and stand upon the 

contract as made, he was certainly not required to 

avoid it. It was his right to retain the first 

payment, to permit the appellant to perform the 

contract, and to forfeit the payment, if the 

appellant failed. Unless Barnes received something 

from the appellant under the contract as changed, 

with knowledge of the change, his rejection, 

through the bank, of appellant's tenders gave 

notice of his refusal to abide the change. As he 

was not required to avoid the true contract, and as 

he could ignore the change until somethinq occurred 

to compel him to accept - or rej - 

- be estopped by any action 

amounted to anythinq less - -- than 

change. (Emphasis supplied.) 

- ect it, he could not 

- or inazion which 

- an acceptance -- of the 

The law is, or was until this case, in case of an 

altered instrument, where the change was made without the 

consent of the other party, the nonconsenting party was not 

required to take any action, and thus there could be no 

charge against him, until he accepted the change, relating to 

laches, estoppel, waiver, or any like defense. In this case 

therefore the discussion of laches, or the effect of 

recording, under the facts adduced in this case, is 

irrelevant. Here Benson acted when he learned that the other 
party and his successors were relying on the altered portion 

of the instrument. 

We should reverse this case on the fact issue that is 

presented. The District Court granted a summary judgment. 

The fact issue to be determined in this case is whether we do 

have before us an altered instrument. In that regard, we are 

presented with the evidence of McCullough, who is named as a 

grantee in the altered deed, and who now claims in oral 

testimony that he was not a party to the deed, and had no 

knowledge that he was a grantee under the deed. Militating 

against his oral testimony now is an earlier deed that he 

made, with others, granting to Diehl Company this and other 

properties, but without a mineral reservation. This case 

requires a trier of fact to determine whether there is 

actually before us an altered instrument. If it does turn 

out that the instrument has been altered, the legal 

ramifications clearly follow. Laches and statutes of 

limitations and recording statutes have no application until 

the mining on the property has begun. 

The reliance of the majority upon $ 70-20-404, MCA, to 

protect Kaiser as an innocent purchaser for value is 

ill-founded. Section 70-20-404, MCA, applies only to 

fraudulent transfers made by grantors with fraudulent intent 

to defraud prior or subsequent purchases or encumbrancers. 

This instrument is not a fraudulent conveyance. It is an 

altered instrument, if it was altered, and it was altered by 

the grantee. This Court would do well not to mess up our 

property law by applying statutes that have no application. 

The rule is that in the case of altered instruments, a 

deed fraudulently altered becomes void and a bona fide 

purchaser from the person altering it takes nothing by it. 

Mosely v. Magnolia Petroleum Co. (1941), 45 N.M. 230, 114 

P.2d 740; 4 Am.Jur.2d.2c., Section 27, Alteration - of 
Instruments. The purchaser protects himself by exacting from 

his grantor the necessary covenants. The only effect of the 

alteration of the mineral reservation was to cloud Benson's 

title; the recording of an altered deed gives no notice to 

anyone because the altered portion of the deed is void and 

even a bona fide purchaser takes nothing by the alteration. 

Rasmussen v. Olsen (Utah 1978), 583 P.2d 50. The doctrine of 

bona fide purchaser applies only to purchasers of legal title 

to the mineral interest. Thomas v. Roth (Wyo. 19631, 386 

P.2d 926. 

d 

I concur with the foregoing diss9nt.