*1 Special CREMER, KATHRYN B. as Administratrix Es CREMER, Appellant, M. CORNELIUS tate Plaintiff v. CREMER RODEO LAND AND COMPANY LIVESTOCK Respondents. CREMER, JR., LEO Defendants 14001. No.
Submitted Nov.
1978.
Decided
1979.
March
8 8 *2 & for
Hutton T. Hartman Rodney (argued), Rillings, Cromley, and appellant. Absarokee, re- for and William R. defendants (argued), Morse spondents. the Court.
MR. HARRISON delivered the opinion JUSTICE Plaintiff, deceased of the estate of her as administratrix special husband, Court of the Sixth this action in the District brought Judi- District, trust constructive County, impose cial Sweet Grass certain land located Sweet and to defendants deed compel 9,May A trial by jury began to decedent’s estate. County Grass 1977, conclusion At the following day. and continued through case the jury trial court took the testimony, timely for verdict. Plaintiff’s motion a directed defendants’ granted denied, she trial was appeals. motion new
89 Sr., Cremer, (Corny) enjoyed M. Cremer Cornelius Leo J. father, Their relationships. close business brotherly John 1936; Cremer, died their mother lived in died who Wisconsin brother, mother, After the of their another five later. death years Cremer, what of their distributed remained Glynn informally Leo, Plaintiff, surviving estate. claims spouse, father’s Corny’s Sr., share the estate and used it to purchase received Corny’s as Township of this action and which described subject East, North, M.P.M., 34: EVL Sec. Range land, The October deed from owner of previous Carlson, Rodeo, Arvid named the “Cremer Land and Livestock. Sr., as a Montana owned Leo Company,” corporation it was executed in Merrick Nebraska. Plaintiff grantee; County, Leo, Sr., claims that intended to this land but fail- convey Corny Leo, ed to so to his death in 1953. She do also contends prior widow, Bertha, Leo, Sr.’s delivered a deed to after Corny shortly Sr.’s that it death but lost. subsequently *3 used and Kathryn, family his wife and their occupied,
Corny, land 1947 until 1974 when taxes on the from paid approximately Cremer, at- Jr., Leo raised the of the land question by of an oil lease on it. died in Corny and tempting grant gas Leo, a and demanded deed from the and from corporation plaintiff and this action ensued. No deed provided Jr. case,
At the denied the conclusion of District Court had defendants’ motion for directed verdict. After defendants witness, their case and had testified as rebuttal presented It was for directed verdict. defendants their motion repeated District at that time. the Court granted by raises three issues for our determination: Plaintiff ' a verdict in District erred directing Court 1. Whether defendants, thereon, denying plain- and entering judgment favor of a new tiff’s trial. motion admit plain- erred in refusing
2. Whether the District Court Nos. and 3. tiff’s Exhibit
3. Whether the District erred Court in not the issue submitting of adverse possession to jury.
In the case from the the trial stated reasons taking jury, judge his in chambers and further elaborated on those reasons in court open for the benefit the jury:
“THE COURT: I am to direct verdict in favor of the De- going fendants, the Cremer and Rodeo Land Livestock and Leo Company laches; Jr., the basis of the doctrine of basis—I took it under but advisement allowed the of the testimony statue, deceased in the dead I man’s and do not feel that the persons admissible; clear, now would be and testimony that there is no con- statute; as to the vincing proof the dead man’s testimony also on the doctrine statute of frauds. If there was to be [sic] any transfer there is to substanti- property nothing writing in, ate it. And that all of the documents are document only to the itself is the deed and the pertaining abstract deed the name of the Cremer showing Rodeo Land Livestock Com- pany.
“We will in and will go I inform the jury.
“IN OPEN COURT
“THE COURT: Ladies Gentlemen of the this is mat- Jury, ter that I deem there is no factual issue to be determined Jury in this I matter. have taken under advisement from the beginning
of this case doctrine of what we call the doctrine of laches and the dead man’s statute. I elected allow testimony transactions that had or between transpired allegedly transpired clear, the various are parties that all decreased. there is a very But doctrine convincing of a dead not ad- testimony is person clear, missible there unless- And otherwise. I convincing proof feel that this is a matter I feel testimony very confusing. *4 that is the wisdom behind the doctrine of laches and dead man’s statute. And I am direct a in case going to verdict this in Defendants, favor Cremer Land and Rodeo Livestock Com- Cremer, Jr., and Leo that basis. That pany upon they brought trust; a action under constructive I feel that this is an action that lifetime of one of the parties during have been brought should been before the Court. I could have so that the matter properly matter, I would in this that to to instruct try Jury think that it went to the on the doctrines of the Jury instruct if you have to fraud, of real estate must conveyance that holds that any statute of is not admitted to alter the be And that oral evidence in writing. to instruct on the doc- you document. I would also have written time if the matter has gone period trine of laches. That barred from it. Now there without action that the party bringing issue, and I hate take a case from a away two sides to all of the I instructed in this case the you only way but I feel that if Jury on the of the statute of I could instruct would be doctrine you statute, the dead man’s are not you frauds and laches and on of deceased And here we had testimony to have permitted persons. Cremer and Corny of two deceased both Leo persons, testimony Cremer. So there is record of all documents complete can determine what exhibits. And if desire the Court they Supreme statute, the dead man’s these issues should be in regards and the statute of frauds.” statute of laches and estoppel M.R.Civ.P., 50(a), Rule addresses the motion for directed ver- a directed ver- dict. The basic rule motion for governing granting R.C.M.1947, 93-5205, now section dict is stated in section 25-7-302 MCA:
“Where, the trial of an issue case by jury, presents law, direct the to render a ver- only questions judge may dict favor entitled thereto.” party we noted
In v. Baril 173 Mont. 566 P.2d Sant 93-5205, section three basic rules which apply interpreting R.C.M.1947, now section 25-7-302 MCA. defendant, in favor of
“1. a motion for directed verdict Upon will be considered the light the evidence introduced by plaintiff it tends to and as whatever most favorable proving prove. from the unless
“2. A cause should never be withdrawn a mat- facts must follow as to be drawn from the conclusion sought *5 92
ter of law and cannot be recovery had view which upon any could be drawn reasonably from the facts which the evidence tends to prove. defendant,
“3. In
an order
a verdict
reviewing
the
directing
court will
reviewing
consider the evidence
only
introduced
by
evidence,
and if that
viewed
plaintiff
in the
most
light
favorable to
tends to establish the case
plaintiff,
made
by
plaintiff’s
(Citations omitted.)”
be
order will
reversed.
pleadings
The Court then went on to say:
“The test
to determine if the
commonly employed
evidence is le-
sufficient
gally
to withdraw cases and issues from the
whether reasonable men could draw different conclusions from the
(Citations omitted.)
evidence.
If
one conclusion is
only
reasonably
Sant,
then the directed
proper,
verdict is
“There is no defense of laches in Montana. It is crea- statutory (1962), ture of Montana Power Co. v. Park Electric equity.” Co-op. 293, 301, 140 Mont. 371 P.2d 5. . . “Laches . means negligence in the . . an assertion of . and it exists when there has been right; of such en- duration or character as to render unexplained delay forcement of the asserted v. Bank inequitable.” right Montgomery Dillon 114 Mont. 136 P.2d 766.
Plaintiff that deed to the land was delivered alleges part to her husband but lost. the first time the subsequently Apparently true of the land was was when Leo ownership questioned Jr., an oil and lease in 1974. Prior to that attempted grant gas time, used, taxes on the Corny Kathryn occupied, paid land for in the rec- is insufficient evidence nearly years. There that or her husband was ord to support proposition plaintiff aware defendants claimed disputed Therefore, 1974. we find that or her husband was prior plaintiff result, in the of this laches not assertion As should negligent right. in its by not have been considered District Court decision re- a directed verdict. garding court as
The next mentioned trial ground precluding recovery estoppel. Defendants argue *6 should be a behalf claim on of her hus- estopped asserting her, husband’s, estate band’s because of her in acquiescence the title to the land remain in defendant letting for so corporation many years.
The equitable of set out in section principle estoppel 93-1301-6(3), R.C.M.1947, 26-1-601(3) now section MCA: has, declaration, act, omission,
“Whenever his own party by or intentionally led another believe a deliberately particular true, cannot, belief, and to act such he in thing any litigation declaration, act, omission, out of such or be arising permitted it.” falsify laches,
As case of is a of Defend- estoppel equity. principle ants’ acquiescence and her husband allowing plaintiff to oc- use, time, taxes on land for an cupy, pay of extensive'period without or her husband of their informing plaintiff claim, was as as acquiescence of misleading any plaintiff or her result, As a husband. this is not for the proper case of application estoppel. to the District Court’s
Turning reliance on the statute of frauds, we find that it was considered. We note that it improperly was considered. We note that our improperly holding Cam v. Mercer Mont. 227 P.2d panello 313-14, controls this situation:
“Under the facts as found the court here was situation by where the consideration for transfer of property paid by taken in the of the title name Cora Ellison. Campanello By 86-103, R.C.M.1947, statute sec. a trust is to result in presumed favor Such a trust is created money. of person advancing by A of law. trust created operation by operation omitted.] [Citations of law does not come under thé Statute of Frauds and bemay evidence.” proved parol
We are left then with the task the effect of the determining of First, we “dead man’s statute” in relation to certain testimony. 1, 1977, effective date note'that this trial was held before the July result, cannot, consider Montana Rules of Evidence. We as statute, then, is their effect in this case. The possible application 93-701-3(4), section R.C.M.1947: “The cannot be witnesses: following persons “4. to an action or or proceeding, Parties or of assignors parties in whose behalf an action or proceeding prosecuted persons as to the facts direct trans- or against any corporation, person between the witness and action or oral communications proposed such or and between corporation, the deceased agent person witness and deceased officer of such corpora- such proposed any tion, the testimony when it to the court that without except appears ” added.) be the witness will done. injustice (Emphasis a foundation to be laid corrobo-
We find that the rule requiring *7 ad- can be heard the supports the claim before the rating testimony v. Central mission of the in this case. See Union testimony Phelps 891; 195, 203, 887, (1937), 71 P.2d Insurance Co. 105 Mont. Life 192; 378, 388, (1938), 107 87 P.2d Rowe v. Mont. Eggum 35, 39, 139 236. v. 115 Mont. P.2d Sharp Sharp defendants’ for directed verdict at the motion Resisting case, conclusion of counsel for stated: plaintiff’s “. . . the aside corroborative facts supporting plaintiff’s position, statute, from the dead man’s taxes are these. The of the payment 1975; land; from 1947 to of the it or it possession cropping farming time; to the still in present possession;the the delivery Cremer, Plaintiffs; Sr., abstract and the Leo to the the di patent by Cremer, Sr!, rection by Leo to-the Assessor to send the tax County statements to K. B. et wir. These are all facts that positive the of the plaintiffs, establish corroborate claim of it is a suffi aside from the evidence of the dead man’s statute. And cient to allow the evidence the dead man’s statute.” basis under
We District find there was sufficient foundation for the the Court to allow the excludible “dead man’s testimony statute” of a to the subject cautionary instruction giving addition, it we should be accorded. In find regarding weight that the District Court erred in defendants’ motion for granting Sant, directed verdict. In which only test applying supra, considered, that evidence introduced to be we note by plaintiff evidence, when considered in plaintiff’s most favora- light ble to tended to establish the case made plaintiff, in plaintiff’s The District Court should pleadings. have allowed the case to go therefore, case, This jury. must be reversed and remanded for Court, new trial. For the benefit of District we will ad- briefly dress plaintiff’s two remaining issues. 2,1,
Plaintiff’s Exhibit Nos. *8 trial, moved the court to counsel of the the conclusion At the alternate theory: jury the case to submit on the basis of we move the Court At this time “MR. SHEEHY: user, right. use and prescriptive on adverse and proof adverse basis, lands used have been they on the The thing “THE COURT: use rather than was a consent there. It permissive and forth by back adverse; adverse use.” notorious open, R.C.M.1947, 93-2510, MCA 70-19-409 now section
Section states: occu- an actual continued there has been
“Where it that appears title, land, other right, exclusive of any a claim of under of pation decree, instrument, or judgment, a written but not founded other, been to have no is deemed the land so actually occupied, held adversely.” the disputed and her husband possessed
Whether plaintiff to the been submitted which should have is question adversely law. Since the to the instruction with respect under jury proper was question jury withholding stated reason only “hostile,” we find that that the use the court’s determination fact- determine invaded the province this improperly ual questions. MELOY, SHEA, Dis- and PETER G. DALY and
MR. JUSTICES SHEEHY, concur. of MR. in sitting place trict Judge, JUSTICE and dissen- concurring part HASWELL MR. CHIEF JUSTICE ting part. I dissent from a new trial.
I with the majority granting concur sub- the case should have been part opinion holding adverse mitted to the on the theory possession. occupancy All the evidence in this case indicates permissive trust, a of the land whether it be based on a construction use deed, lost or notorious and otherwise. There is no evidence of open, view, 93-2510, hostile land. In section R.C.M. possession my MCA, now section 70-19-409 supply missing does not evidence under these circumstances. way presumption and 3 were letters notes pro- Cremer, Jr., duced Leo by defendant when he was coun- deposed by sel prior to trial. He had found them his father’s among papers. Their but not their was import, authenticity, questioned. in- They volved Glynn Cremer’s distribution of alleged Cremer’s John estate. case, At the conclusion of plaintiff’s counsel for plaintiff raised of the question admissibility exhibits chambers. In counsel defendants response, that the exhibits should be argued excluded of the “dead basis man’s statute”. We find that the same considerations which to the apply testimony dis- previously cussed, to the The exhibits. fact that the apply authenticity questioned documents not significant the extent to which tend to corroborate the of either they theory parties Therefore, would be helpful we find that jury. the District erred in Court Exhibit Nos. and 3 on excluding the basis of the dead man’s statute. Plaintiff’s final issue concerns the District Court’s refusal to submit case to the on a of adverse theory possession.