895 F.2d 1416 (9th Cir. 1990), 88-4166, Ackerson v. Ackerson

Docket Nº:88-4166.
Citation:895 F.2d 1416
Party Name:Truman ACKERSON, Plaintiff-Appellant, v. Edward ACKERSON; George Ackerson; Allin Cheetham; and County of Chouteau, Defendants-Appellees.
Case Date:January 31, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1416

895 F.2d 1416 (9th Cir. 1990)

Truman ACKERSON, Plaintiff-Appellant,

v.

Edward ACKERSON; George Ackerson; Allin Cheetham; and County of Chouteau, Defendants-Appellees.

No. 88-4166.

United States Court of Appeals, Ninth Circuit

January 31, 1990

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Sept. 14, 1989.

D.Mont.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Appeal from the United States District Court for the District of Montana; Paul G. Hatfield, District Judge, Presiding.

Before SCHROEDER, BOOCHEVER and BEEZER, Circuit Judges.

MEMORANDUM [*]

This is a diversity case arising out of a longstanding dispute between two brothers. In this case there is much to be said for what was described at oral argument as a Montana aphorism, "let sleeping dogs lie." Nevertheless, we hold that the district court should have granted appellant Truman Ackerson's motion for JNOV on the issue of slander of title, and we remand for additional proceedings as to damages on that claim only. We affirm in all other respects.

The dispute centers on Thelen Place, a parcel of land located in Chouteau County, Montana, originally belonging to Ruth Ackerson, mother to plaintiff-appellant Truman and defendant-appellee Edward Ackerson. Prior to her death in 1983 Ruth apparently gave Thelen Place to Truman. Litigation resolved ownership of the property in Truman's favor.

At some time Edward came into possession of three quitclaim deeds which were blank except for the signature of Truman. Truman had executed these deeds sometime in 1940 before departing for military service in World War II. The parties dispute how Edward came into possession of the deeds; Truman claims Edward found them among his mother's possessions, and Edward claims his mother gave them to him following his son's "rescue" of his mother from maltreatment at the hands of Truman. During this time Truman was negotiating with one Bob Bailey to sell Thelen Place to Bailey.

Cheetham is the part-time county attorney for Chouteau County; he is also a private attorney. In 1984 Cheetham was approached by Edward Ackerson and his son George, given the blank deeds, and asked to complete them by inserting George Ackerson as grantee and inserting the legal description of Thelen Place into the deed. Cheetham filled in at least one deed, dated it, and deposited it at the Clerk and Recorder's Office on May 16, 1984. The Clerk called to his attention that the deed was unacknowledged but Cheetham requested that she file it anyway, and she did so. Edward contends that George also asked Cheetham to file some affidavits prepared by attorney Richard Martin, explaining the circumstances under which Ruth gave Edward the blank deeds. This Cheetham did not do. Edward claims that Cheetham told him the deed could not cloud the title to Thelen Place because it was not a legal document.

Sometime after recordation of the deed, Bailey backed out of the deal to buy Thelen Place. Bailey testified he did so because he feared the recorded deed clouded the title. Truman further claims that the property's value has since then dramatically depreciated and its value remains below what he could have received for it had he sold it to Bailey.

Thereafter, Cheetham filed a quiet title action on behalf of Edward and George to establish the validity of the deed that he had recorded and to establish George as the owner of Thelen Place. Truman filed a cross-claim against George and a third-party complaint against Edward. That action was dismissed without prejudice, following which Truman filed the present action. Truman brought suit against Edward, Cheetham, and Chouteau County, alleging six counts, including...

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