*1 Margaret L. J. Rice, MICHAEL McCARTHY Plain RESOURCES, TIMBERLAND Respondents, tiffs Appellant. INC., No. 85-57. 28, 1985. on Briefs June
Submitted Decided Dec. P.2d Bostock, Libby, Douglas Douglas, & A. for defendant and William appellant. Manley, Ignatius, A.
James St. MR. JUSTICE HUNT delivered the of the Court. Respondents, Rice, McCarthy purchasers of land on a contract Resources, Inc., for deed from unable to rec- ord their acceptable description, for lack *2 an to rescind the contract and fees. The District Court of the Fourth Judi- granted cial District summary judgment. their motion for appeals. Timberland Resources
We affirm.
The issue is whether a under a contract for deed rescind the contract grounds on the deed not marketable when a refuses to description, record the deed because the although correctly land, it statutory describes the does not meet requirements. 1978, Resources, Inc., purchased in land County, Montana,
Sanders Company. from Trout Creek Land The purchased land was in contiguous parcels lying gov- ten-acre in two ernment parcels sections. The deeds for these were recorded in Sanders July appel- 1978. On respondents lant and entered into a contract for deed to sell these parcels to the A notice of real estate contract was filed in County. same Sanders quit claim deed to defendant the notice of real estate contract are identical and are de- scribed as follows:
Tract 16—N½ S½ SW¼ SW¼ Sec. 23 and N½ SE¼ SE¼ S½ Principal SE¼ NE¼ SE¼ SE¼ T24N R32W-20 me ridian, Montana, County, Sanders State Montana previously recorded both the Although County had Resources, Inc. Company Land to Timberland Trout Creek Resources, from Timberland Notice Real Estate Contract pro- to a to file deed from Inc. it refused 8,May Opinion of Attorney spective buyer General because County Attorney, requested by con- opinion, the Sanders 1981. That must be in the future cluded that recorded 76-3-401, provides: compliance That section MCA. Section after “All than subdivision divisions of land sale other one-thirty-second or parcels be described as into which cannot or a parts large aliquot of a United States under the su- or United States lot must be surveyor.” pervision registered aof May 8, concluded that Attorney opinion of General MCA, 76-3-401, required that Section gov government section a United States disa same section or lot. We ernment lot must be contained requirement of gree with the General can be satisfied *3 lot aliquot part is of and 20 acres and aliquot and of it is divisible into the is In section or lot. this in more one located
case, 22½ as an and is not divisible the is acres of a section or lot. parties parcels,” here of the
While the talk “20 22½ acres of land shows, found, there was and the District Court plain purportedly parties. June for the On contracted purchase defendant to this from tiffs entered into a contract price purchase was purposes. The for investment $1,500 began $25,000. mak downpayment of and made Plaintiffs payments per ing month. $271 for purchase the party willing to
Plaintiffs found a any $28,000 County to docu- refused record but because Sanders description in and containing the the contract ment the form of plaintiffs were unable agreement, in its deed as used brought to rescind complete this action to the sale. Plaintiffs then contract, for profit for the for loss also Plaintiffs Attorneys provided were the contract. fees. fees had mortgage their land that defendant for rescission for a on asked represented mortgage as was affecting not their land. The removed prior hearing to the is of this action.
Defendant maintains that the title and that Sanders is marketable County authority unjustified legal is and without to refuse to record position filing the deed. Defendant takes of the deeds descriptions and other matters with as contained the contract be- plaintiffs tween the before the defendant filed county refusing General’s bars the to subsequent documents with the same to county argues The defendant further it is that since that caused plaintiffs’ problem deed, plaintiffs’ because of the refusal to record plaintiffs against county should their action rather party than the defendant. has made a to by any this parties. of these problem argument with defendant’s is that as
purchasers got a get lawsuit with their contract. order to a record- required bring able title are to an action either for rescis- they here, sion as have done re- an action to quire it to record their On deed. October defendant was process served with in this action to rescind contract with This has subject Court said on this of marketable title: purchaser “The required title, cannot take a doubtful when, title is among things, declared ‘doubtful’ other ‘the probability litigation ensuing against purchaser respect considerable,’ the matter is doubt as the court ‘will not lawsuit,’ buy and ‘where there has been a decision by the . . . adverse . . . title the court thinks wrong.’ the decision Plaintiff’s covenant was that on the set performance, showing final she would furnish an abstract ‘clear title’ property, required convey the real which covenant her to a ‘mar- ketable title.’
“The term ‘marketable is .... title’ difficult of definition practical most test as to whether is such that a third title person may reasonably question raise a after the time contract *4 completed. would If the condition the title warrants “ attack, may such reject the title as ‘unmarketable.’ (Citations omitted.) Asplund, et. (1933), al. Mont. Silfvast 20 P.2d
The matter August was heard the District Court on 1984, more than ten months later its order issued more a granting summary judgment During year nothing to resolve the issue. still was done problems with the effort to correct time the defendant made no by an by a either description. a defendant could deliver the record it is clear that the From plaintiffs. marketable title is affirmed. judgment of the District Court HARRI- JUSTICES and MR.
MR. CHIEF JUSTICE TURNAGE SON, MORRISON, GULBRANDSON concur. SHEEHY and WEBER, concurring: specially
MR. JUSTICE opinion judgment holding majority I that agree unable the defendant was is affirmed because of the District Court title to deliver marketable requirement of Section majority states than 20 acres parcel if can satisfied be if it is lot and section or and is an a and the aliquot parts divisible into may parcel or lot. I do not be located more than one statutory interpretation. agree with that description: following majority approve the would use SE¼ and SE¼ NE¼ SE¼ N½ S½ SW¼ SW¼ Sec. 23 sections, are located different Even the two ten acre tracts description. majority to be a sufficient would be held 76-3-401,MCA, clearly parcel must says that a part described as a it cannot be question is acres as is the normal of a section. If the section ali section, would be 20 then the smallest is the smallest quot Sec. 23. That as S½ SW¼ SW¼ of such survey. the statute without described under which