*1 TURLEY, TURLEY FAYE LYCURGUS A. ELNORA GERALD Wifе, Appellants, Plaintiffs Husband TURLEY, O TURLEY AND His . PHYLLIS K. Wife, and JAMES M. TURLEY MICHAEL TURLEY a/k/a TURLEY, MAXINE M. His Wife, Defendants Respondents. No. 81-61. May 14, Submitted 1982. July Decided 1982.
Rehearing
Aug.
Denied
See Deeds §211. Hennessey Joseph Hennessey Billings, ar- Office, P. Law gued, appellants. Billings, plaintiffs for and Billings,
Crowley, Haughey, Hanson, Dietrich, Toole &. Dalthorp Cynthia George argued argued, Bill- C. and Ford ings, respondents. defendants for and opinion of the delivered the
MR. JUSTICE HARRISON Court. September in 1978 the in action
Plaintiffs commenced this District Judicial of the Fourteenth District Court County Montana, Musselshell, State of in set aside two deeds executed them favor of jury the defendants. The case tried without July appeal 1980 the court found for the defendants. This follows: Regina Turley
Gerald E. Musselshell, ranched at They living Montana. had seven children at the time of the — O., Edward, Turla, Mike, trial Francis, Gerald Adele and Lycurgus. Mike, defendants, Gerald the two spent working Lycurgus, their entire lives on the ranch. plaintiff, age went to live with relatives in Texas from completion high required eleven to the school because hе special palsy. Lycurgus attention for his cerebral returned Turley began ranch in 1963 and to work there off and Ly- on with his father and his Mike brothers and Gerald 0. curgus left the ranch in 1967 not lived or worked there since. Turley, father, Gerald E. died 1973. Prior to his *3 plan by
death, he established an estate which sons those who worked the ranch would own the surface of land. the grant right He also intended to the to lease the mineral rights working ranch, to the sons the but to reserve all of to right royalties production. the children the from to receive pay $10,000 The sons on ranch the were to to each of their upon parents’ brothers and sisters plan the The death. estate in was initiated 1964 when Gerald O. and Mike were only working time, the sons the ranch. At that O. Gerald and Mike were each deeded an undivided one-sixth of February Lycurgus in surface 1964. to in returned the ranch June 1964 and was a in sur- deeded one-sixth interest Turley Regina face in December 1964. Gerald E. and con- convey equal Ly- O., tinued to interests to Gerald Mike and curgus in 1965, 1966, 1967. and Lycurgus parents ranch,
After had left continued to deed the surface to from 1969 to Gerald 0. Mike convey any Lycurgus. 1973 but did not further interest to plan father, car- Gerald E. before the entire was died and, result, mineral interest and a none of the ried out rights not been deeded. of the surface had all but 2-1/2% percentage became a small surface The mineral interest and thereby passed wife to his fathеr’s estate and and children.
Lycurgus possessed at the 24-Vfe interest the ranch a % departure His fa- the ranch 1967. date of his final from him the sons who were wanted to deed interest to ther working Turley family lawyer prepared a Ly- ranch. The Lycurgus quitclaim O. and Mike. from to Gerald deed quit- August curgus signed 1968. deed the deed on only. Lycurgus’s rights surface claimed Turley year, 1968, the was refinanced In that ranch same procured from Prudential Insurance Com- loan signed pany $150,000. This note was the sum Lycurgus Lycurgus. parents, 0., Mike and When Gerald they agreed quitclaimed Mike, O. and his interest to Gerald promissory liability Lycurgus under the all the to assume Company mortgage Prudential Insurance note to consequences indemnify him all and hold harmless from to according language thereof, to all of his execution quitclaim Lycurgus’s not removed While name was deed. showing note, no that he sustained from there was began, damage as a result. After the action detriment Lycurgus’s sought from name removed defendants upon note, advice from counsel. but refused in the E. received an interest The children of Gerald each Gerald minerals the distribution of under land requested of their sib- E.’s Gerald and Mike each estate. O. quitclaim lings to reserve their mineral interest but their royalties. Lycurgus right his wife executed such deed March *4 quit- Lycurgus the 1968 and 1977 later claimed both undue as a result of fraud and claim deeds were executed influence this was the result. suit prеsented appeal: following issues are declaring in the 1968 deed
1. the court erred Whether barring plaintiffs’ recovery? in valid and action for declaring in Whether court erred the 1977 deed recovery? barring plaintiffs’ valid in action for authority Four cited cases are as for this judgment Court to overrule the of the District Court. Denny (1973), 468, v. 77; Brissonneaud 161 Mont. 506 P.2d (1895), v. 395, Merchant’s Bank Greenhood 41 P. 16 Mont. (1978), 250; v. Cameron Cameron 587 P.2d Ettinger Pappin 939; Mont., Van 588 P.2d St.Rep. 1956. upon by appellant,
Two of the above cases Van relied Ettinger, supra, supra, Denny, controlling. are not Van Ettinger necessary establishes fraud, nine criteria show any and failure to establish one these elements will result in One of dismissal. these elements is the hearer’s reliance representation. on the The record is bare of evidence of Lycurgus reliance on the on statements made to him. supra, Denny, involving vendors, a real estate broker purchaser residence, of a this held that Court accepted aassignment pur-
vendors who an cash as equity chaser’s in a interest note in escrow for in their purchaser residence were not entitled to recover from the and the real estate broker for fraud because vendors re- only monthly payments ceived two escrow. note proof This held Court where there no the note was they damaged. Denny, valueless, had Here, not been appellant got bargained what he for when he deeded upon leaving operation. back his interest ranch Appellant contended the trial error for court declaring appel- the 1968 and 1977 deeds invalid. The argues relationship, lant that the influ- confidential undue necessity ence, rescission, consideration, lack of nonapplicability readily ap- of the statute of limitations are parent presented gleaned and can be from the at evidence trial. important opinion
It is to reiterate the outset *5 270 concerning scope law of this Court’s of the review
findings sitting of a trial court without a and conclusions (1978), jury. 219, v. Cameron 179 Mont. 587 Cameron reviewing 939, law, P.2d this area of we stated: when “ findings reviewing in ‘This in of fact a Court’s function jury civil action tried the district court without is not place judgment in of the to substitute its of that trier determining but it is rather “confined whether support” there is evidence to the find- substantial credible Hornung ings v. Estate and conclusions of law. fact Lagerquist, 412, 420, 541, v. Mont. 473 P.2d 546.’ Olson 155 (1976), Properties, 154, 171 Inc. Mont. 557 P.2d Westfork Rep. 821, 823, 33 St. 1133. presented,
“Although may exist the evidence it conflicts duty judge is the the trial such conflicts. His resolve they findings appeal on where are will not be disturbed though conflicting evidence, on unless based substantial against preponderance is such there a clear evidence findings. omitted.] [Citations may presented,
“Although exist it conflicts evidence duty judge trial such conflicts. His resolve findings they appeal be where are will not disturbed though conflicting evidence, based on substantial unless preponderance against there is clear of evidence such findings. omitted.] [Citations findings sup- determining
“In whether the trial court’s are ported by evidence, must this Court view substantial party. light prevailing evidence in the most favorable to the (1973), Transport, v. Barrett Mobile Home Inc. Hellickson Properties Inc., 455, 523, 525; 161 Mont. 507 P.2d Westfork supra. ‘as con- is evidence such will ‘Substantial evidence’ may rea- vince sonably men on which such men reasonable [prevailing differ as to whether it established party’s] case, and, if all reasonable men must conclude case, it is not sub- does not such then evidence establish (1934), Mooney 1, v. 97 Mont. 33 Morton stantial evidence.’ (1972), Staggers 254, 262, 265; 159 P.2d v. USF&G Mont. may inherently 1161, 496 P.2d evidence weak and still be deemed ‘substantial’ and substantial evidence may presented. Campeau conflict with other evidence Lewis P.2d 587 P.2d 962.” at 944-945. supra, Cameron,
The issues also dealt with fraud and Cameron, Here, undue influence. inas the trial court’s deci- judge’s conflicting sion was based resolution of testimony. We held in Cameron: presented judge trial,
“Much the evidence which the *6 of making findings conclusions, considered in his and con testimony. credibility sisted witnesses’ such wit of of prime importance appeal. nesses is ity in this ‘The credibil of weight given the witness, however, not is this primary Court to determine. This is a a trial function of judge sitting jury; special consequence a without it is of (Citаtions omitted.)’ conflicting. where the evidence is Hel supra. lickson, judgment
“. . .We will not substitute our
for that of the
only
fact,
trier of
but rather will
consider whether substan-
supports
findings
tial credible evidence
and conclusions.
findings
by
Those
will
be
not
overturned
this Court unless
preponderance
against
there is a clear
of evidence
them. We
light
pre-
will
view the evidence
a
most
to the
favorable
vailing party, recognizing
may
that substantial evidence
conflicting
yet
suрport
evidence,
weak or
with other
still
Finally,
findings.
credibility
where the
witnesses is
of
of
prime importance,
here,
as it is
the determination
weight given
testimony
primary
is
function of
judge sitting
jury
the trial
without a
that
not
this
added.)
(Emphasis
Court.”
Appellant argues relationship that a confidential ex family isted between himself and his and that as a result of relationship, overtly susceptible influ- he was to their of this relation- ences. He further maintains that because ship, independent signing he failed to seek advice before the deeds. findings support fail
The trial court’s this contention. nothing more, had The record reveals that the relationship less, other than a normal familial with the respect family. his members of law is clear with relationship” may af- constitutes “сonfidential what validity Deeds, It at 26 fect the a deed. is stated C.J.S. at section 58 751-752. hand, bare
“On the other existence a confidential standing grantor grantee not, does relation between presumption alone, fraud, set raise a a deed will not be merely grantor grantee a confi- sustained aside because relationship where the shows no abuse dential evidence grantor confidence; later mere fact undoing changed justify a court in mind will grаnt. expression grantor in the Mere of confidence grantee relationship ...” does not a confidential create independent prerequisite Further, to the va- advise not a lidity Deeds, 752-753. of a deed. C.J.S. section supports
Appellant contended the evidence also *7 28-2-407, of influence. He cites clear case undue section supra, support MCA, Cameron, con- Cameron v. this alleges undue tention and that the test for influence completely by been satisfied the facts.
Again, agree there the trial failed to and stated that court agree. support was no contention. We evidence to this required is is to set aside test of what undue influence that conveyance MCA, 28-2-407, which a provides: is forth set section con- undue Undue influence
“What constitutes influence. in: sists
“(1) by by reposed is the use one whom a confidence authority apparent him or over another or who a real holds authority purpose obtaining of of or for the such confidence
273 advantage an him; unfair over
“(2) taking advantage an of unfair another’s weakness of mind;
“(3) taking oppressive grossly advantage of unfair another’s necessities or distress.” Presumption See, Undue Blackmer: of Influence (1976); (1970), Gray Montana, 37 Mont.L.Rev. 250 Orton v. (1973), 270, 305; 285 Ala. 231 v. So.2d Thomas Seaman Pa. A.2d period
The facts this do not case indicate over the here family by involved an intent member to take ad- appellant. vantage of argument by appellant
The next made is that the facts presented suppоrt in the record a clear case fraud. He applies 28-2-405, MCA, part contends that section and that the satisfy Ettinger the nine test out in Van v. set Pappin, supra. appellant argues Further, if actual by facts, fraud not established then constructive present. fraud, 28-2-406, as MCA, defined section necessary part appellant’s A contention as to present whether fraud is should include a discussion applicability fraud, of the statute of limitations on section agree, 27-2-203, concluded, MCA. The trial court we applied ap 27-2-203, MCA, here, section bars the pellant bringing respect from even as to claim fraud with to the 1968 deed. As this Court in Israelson held Mountain Co. Tractors 467 P.2d 149: upon “. . .the claim arises the occurrence fraud discovery upon exception person
and not
with the
who can show that the act of
was committed under
fraud
presumed
such circumstances
would
to have
knowledge
exception
Howevеr,
of them.
an obli-
under
gation
present
aggrieved party to
facts to
rests
bring
exception. He
within
must show some
himself
af-
designed
representation,
equivalent,
act or
its
firmative
prevent
prevent
discovery
here,
and which did
of facts
*8
diligence.”
by
Too,
must
As for the evidence does the support appellant’s appellant did not the contention. The Ettinger, satisfy parts set in Van all nine of the test out Ettinger supra. are as The nine elements from Van follows: represеntation; A“1. Falsity representation;
“2. the of Materiality representation; of the
“3. representa- Speaker’s knowledge falsity “4. of the of the ignorance truth; its tion of Speaker’s upon;
“5. intent it should be relied falsity ignorance The “6. hearer’s representation; representation;
“7. hearer’s reliance on the right rely representation; “8. hearer’s to proximate Consequent injury reli- “9. caused representation.” 588 P.2d ance on the at previously at father’s As noted the time death percent except 1973, all 2-Vz surface of the land rights sons, had to the Gerald 0. and been distributed plan. previously up Regina according Mike, to the set estate Turley, length children, of the testified at about the mother plan, leaving property ranch, the estate the reasons problems done, in the manner it was resulted. Turley, testified, Mrs. the time she was a woman of sev- family dispute enty-three caught years, over who was years property preserve arrangemеnts made some before ranch. that her was the dominat- the ing She testified husband family
member matters and that she on business along preserve him on made to went with decisions She she with him to see Mr. Kilbourne ranch. testified went plan up set and that she went at the time the estate give rights along plans with the surface her husband’s boys stayed testi- ranch who on the ranch. The mony agreed boys she that the who worked indicates Lycurgus left, she was ranch should benefit that when get Lycurgus awаre that her went Two husband Dot to sign given him the interest when he re- *9 testimony, period. turned to the ranch for a short From her problem was, as it confused got it can be seen that the of who family, upsetting problem the ranch was an in the but by fails to indicate record such influence the father or setting that brothers warrants aside deeds. appellant prove any
Here, the failed to that fraud existed. representation First, isit doubtful whether the made to the appellant concerning necessity signatures on the anything good prac- 1977 deed was but business appellant prove tice, Second, much less false. not did brothers, Mike, mother, that his Gerald and nor his knew representations anything Third, that the were but true. appellant rely did not to have information that was given Ettinger, supra, him. As this in Van Court stated 588 994: P.2d at
“Appellants rely alleged representations not could respondents Lee as a matter of v. Stockmen’s Na law. 262, Bank 284, 623, 630, tionаl 63 Mont. 207 P. it was stated: appears party,
“When it that a who have claims to been investigated prejudice, deceived or for himself that the means were at hand to ascertain the truth ... of any representations him, made to his reliance such representations they may him, however made false (Grindrod ground complaint. Anglo- been, affords no v. P.891; Co., American Bond 34 Mont. Power 85 & 1149.)’ Turner, 950; Brothers 97 P. C.J. added.)” (Emphasis specific
We note that the District Court did not make findings on the issue of constructive fraud. Constructive by 28-2-406, MCA, fraud is defined section as follows: “Constructive fraud consists in: “(1) Any any duty actually which, breach of without advantage person gains intent, fraudulent an fault anyone by misleading claiming another him under anyone claiming prejudice prejudice under or to him; or
“(2) Any especially law de- such act or omission respect fraudulent, to actual fraud.” clared without added.) (Emphasis any showing to set record fails forth by respondents. Thе does was misled record respondents declared
not show act on appel- that the law to be We therefore conclude fraudulent. prove lant has failed to constructive fraud. support appellant’s
The facts law do contention 70- there deed. Section was no consideration either provides: voluntary 1-502, is an MCA, “A transfer executed concerning subject contract to all rules of law contracts necessary genеral, except to its consideration is not validity.” Also, Cancellation Instru- at 13 Am.Jur.2d *10 ments, 519-520, 25 at we “The rule is clear section find: inadequacy itself, not, is a sufficient that consideration ground any agreement instrument, in- for cancellation or cluding a deed.” indeed
From facts we find that consideration was the present. appellant’s agreed hold him harm brothers to promissory less on the from Prudential Insurance note Company signed quitclaim if the The fact that the deed. appellant’s mistakenly is was not taken off the note name light clause of the 1968 irrelevant of the hold harmless appellant quitclaim was never asked deed and fact that ap pay quitclaim deed, on As 1977 to the note. for the payment pellant $2,500 from received a down his brothers promised pay appellant $7,500 to who to an additional respondents paying their mother dies. The have been when policy premiums in their on a life insurance is pass proceeds policy will mother’s name. The appellant siblings, Mike, in other than Gerald signature quitclaim 1977 deed. return quitclaim Appellant’s deeds contention that both they section 28-2- should be because come under rescinded
277 applica- 1711, MCA, is unfounded. The section is not cited First, ble to the facts of this case. our statutes not re- do quire property. consideration for the transfer 70- Section voluntary applicability 1-502, MCA, contract, transfеr — rules: voluntary subject
“A is transfer an executed contract to all concerning general, except rules of law contracts necessary validity.” consideration is not to its clearly In addition, here evidence showed signing be indemnified for and that would be sufficient consideration.
Appellant’s final contention is that his action as is deed limita barred statute of Again, supported by tions. this assertion is not either parties agreed facts or 27-2-203, law. Both that section controlling point. MCA, is 27-2-203, MCA, on this Section provides: ground pe- “Actions or mistake. The for relief of fraud prescribed
riod for the commencement of an action for re- ground years, lief on the or is mistake within fraud cause of action in such case not to be deemed ac- to have discovery by party aggrieved crued until the constituting fraud mistake.” interpreting The case law when the statute of limitations begins quite clearly respondents. to run in favor of the supra, Co., Israelson v. Mountain Tractors we held begins only statute run when the fraud occurs and the exception pre is if there was an affirmative act to person discovering vent from fraud. in Is This Court supra, Kerrigan raelson, cited v. O’Meara following language: 227 P. which contains the *11 “There must be some of active affirmative concealment something deception fraud, the said or done to continue the prevent inquiry plaintiff toor and lull of the intо a sense security, postpone running order the of the statute general begins rule,
“As a the statute of limitations to run right accrues, not when the from time of action the the knowledge plaintiff ignorant to a of his who is before comes rights . . . implies ‘discovery’ the facts
“Now the word as used excep- party relying upon the from been concealed the ‘knowledge’ terms, tion. are not convertible ‘Discover’ and discovery facts consti- has whether there been tuting meaning of the statute is a the fraud within the proved. question the facts It of law to be determined from say ignorant plaintiff merely enough is not he the occurrence, and has not time of their of facts years. knowledge He of until within two come into them must acts fraud committed under show that of were presumed to have such that he would not be circumstances knowledge being them, he ‘notice of it the rule if put him on circumstances which would information of inquiry of knowledge, or which would lead to if followed knowledge, presumptively were within his will facts knowledge be deemed have had actual of facts. person an no “The fact that a entitled to action has knowledge right sue, of which or of the facts out his prevent right general arises, not, rule, his run- does ning postpone statute, commencement of the period limitation, or learns of until he discovers per- right Nor the mere silence of the his thereunder. does prevent running son statute. liable action pre- something effect, be done to To have such there must discovery something amount to can be said to vent which — . . concealment . being pas-
“Ignorance right, mere there no more than adversary, silence, cannot siveness, mere exception engrafted limitations, statute of as an policy, and of wise without an without a destruction its negligence. encouragement omitted; em- [Citations of mere phasis supplied.]” P. at 821. years bring
Appellant ten after the claim until did not *12 quitclaim testimony signed. deed was not re- The did respondents any veal an act affirmative appellant’s family. Clearly, member the law cannot be party rights stretched to accommodate a who sits on his for long. appellant’s so The doctrine of laches would bar the applicability if claim there was doubt as to the of sec- 27-2-203, tion MCA. summary, quite easily capsulized. this case can be It is
apparent testimоny appellant from the that the was aware original purpose behind He deeds. plan give knew that his father’s was to ranch to those family stay members chose who and work on the respondents ranch. The worked ranch for their en- appellant approximately lives; tire years. was there three judgment The is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA WEBER BLAIR, concur. FRANK E. sitting place JUDGE, DISTRICT of JUSTICE SHEEHY. dissenting:
MR. JUSTICE MORRISON respectfully I dissent. majority opinion correctly appellant
The notes that relies upon relationship existence confidential routed family allegations. as a basis for constructive fraud argument appellant, crux of this is that because of weak physical dependent condition, and mental for financial advice his father If and brothers. indeed reposed special were found to have trust and confidence in defendants, breach such trust could form the basis constructive fraud relief. majority findings sup- states, “The trial court’s fail to
port However, this contention.” the trial court made no findings respect Therefore, I with to constructive fraud. would remand case District Court with direc- findings. tions to make