Eliason v. Eliason, 11386

• Decision Date: 23 July 1968
• Docket Number: No. 11386,11386
• Citation: 151 Mont. 409,443 P.2d 884
• Parties: Alvin G. ELIASON, Plaintiff and Appellant, v. Albert H. ELIASON and Leo Shellerud, Defendants and Respondents.
• Court: Montana Supreme Court

Page 884

443 P.2d 884

151 Mont. 409

Alvin G. ELIASON, Plaintiff and Appellant, v. Albert H. ELIASON and Leo Shellerud, Defendants and Respondents.

No. 11386.

Supreme Court of Montana.

Submitted April 4, 1968.

Decided July 23, 1968.

Baxter Larson, argued, wolf Point, Samuel W. Masten, argued, Sioux Falls, for plaintiff and appellant.

Leonard H. Langen, argued, Glasgow, for defendants and respondents.

HASWELL, Justice.

This is an appeal by plaintiff from a judgment of the district court of Valley County quieting title in defendants to certain land and cancelling two instruments under which plaintiff claims title. The case was tried before the Honorable Thomas Dignan, district judge, without a jury.

Plaintiff is Alvin G. Eliason, who brought this action to quiet title in himself to the subject land; he will hereafter be referred to as plaintiff Alvin or merely as Alvin. One of the defendants is Albert H. Eliason, the uncle of plaintiff Alvin, who was adjudged in the instant case to be the owner of the land; he will hereafter be referred to as defendant Albert or as Albert. The other defendant is Leo W. Shellerud, the lessee of the land from Albert subsequent to the events forming the basis of this action; he will referred to as defendant Shellerud.

The land in question is a half section of agricultural land near Opheim, 301 acres of which are tillable. It was defendant Albert's homestead and, over the years, sometimes Albert had farmed it himself and sometimes he had leased it to others for farming. In November or early December, 1961, defendant Albert was visiting plaintiff Alvin and his wife at their home in Canton, South Dakota, at which time conversations were had regarding this land. The substance of these conversations is sharply in conflict. According to plaintiff Alvin, a conversation occurred one night in the kitchen of their home at which time defendant Albert said 'It's gestting to where I don't want to farm that place up there anymore. I want to dispose of it and I'll make you folks a proposition. If you will farm it for ten years and give me a third of the crop and pay the taxes on it, we'll make that kind of a deal'; and on the following morning Alvin accepted this proposal. Alvin's wife generally substantiated this conversation but did not mention any conversation concerning payment of taxes. According to defendant Albert, on the other hand, they did talk about farming the land but no agreement of any kind was made at that time. Alvin had indicated that he would 'like to get ahold of some land' and defendant Albert had said 'maybe I can fix it so you can' and that he thought he could get Alvin 'this piece of land the easy way'. No conversation was had concerning a sale, gift or lease of the land at that time 'but we figured, of course, it would have to be a lease.'

Shortly thereafter defendant Albert left for California, returning to Alvin's house in Canton in February, 1962. At this time Albert offered to sell his farm machiney to Alvin for cost and Alvin was going to come to Montana and farm the land. Alvin came to Montana about April 1, 1962, and he and Albert seeded the land. On April 16, after the crop was in, they went to a Glasgow attorney and signed a 12 year lease wherein Alvin was to farm the land, pay Albert one-third of the crop as rental, pay the taxes on the land, and 'farm said lands annually in a good and workmanlike manner' and 'summerfallow said lands not planted to crops, in accordance with local custom'. They returned to the attorney's office on April 27, at which time Albert refused to sign a 'crop contract for sale of land', the substance of which provided for Alvin to purchase the land for $12,000 without interest payable in annual installments of one-third of the crop on the land to be credited against the purchase price with any unpaid balance payable by December 31, 1973. Alvin testified he had never seen the contract until the time of trial. On this same date Albert signed a warranty deed on the land to Alvin and placed it in escrow with the attorney. The attorney also drafted an 'Escrow Agreement' which he signed providing he would hold the deed and deliver it to Alvin 'upon the happening of one of the following named events: (1) Upon April 1, 1974, or (2) The death of said Albert H. Eliason which ever of said events first occur'. Neither Albert nor Alvin signed the 'Escrow Agreement' although both were furnished copies by the attorney. The most that can be said of these agreements beyond their express terms is that the evidence surrounding the circumstances, conversations and agreements between Albert and Alvin leading to their preparation is vague in many particulars and conflicting in others.

With Albert's assistance per agreement between the two of them, Alvin farmed the land in 1962, retaining his employment with the John Deere implement dealer in Canton, South Dakota. In 1963, 1964 and 1965 Alvin farmed the land himself, made improvements on the house and buildings, paid the taxes on the land, and gave Albert his one-third share of the crop.

From 1962 onward Alvin would spend part of the year on the farm near Opheim farming the land and the balance of the year be would live in Canton working at other employment. Additionally, during part of this time, at least, and including 1966, plaintiff Alvin was farming an additional 800 acres of land leased from another.

In 1966, everything continued normally as before until Alvin and his wife left the farm in September, after the harvest had been completed and the summerfallowing done, and returned to South Dakota. The evidence is conflicting as to the condition of the summerfallow at the time Alvin left and as to whether the land had been summerfallowed 'in accordance with local custom'. After Alvin left, Albert looked over the land, was dissatisfied with the summerfallowing that had been done, hired and paid defendant Shellerued to do additional summerfallowing, paid the 1966 taxes, and served Alvin with a notice of cancellation of the lease by reason of Alvin's failure to farm the land 'in a good workmanlike manner' and to summerfallow 'in accordance with local custom.' This notice of cancellation of the lease was given in November, 1966, and also advised Alvin of Albert's intention to lease the land to someone else. On January 3, 1967, defendant Albert leased the land to defendant Shellerud. In May, 1967, Alvin was still in possession of the land, was served with a notice to quit, but he remained in possession.

During the period of time that Alvin was farming the subject land, he made certain improvements to the residence and other buildings thereon at a cost of approximately $880 for materials, exclusive of his labor. He also purchased two grantaries at a cost of about $100. Additionally, Alvin purchased Albert's used farm machinery at the cost to Albert without interest and paid Albert approximately $2,000 for it in irregular payments from time to time during this period. The trial court found that the improvements to the famr were ordinary repairs that any tenant would make and that the farm machinery purchased by Alvin was the 'minimal amount required to farm the lands that the plaintiff was farming'.

On March 17, 1967, Alvin commenced this action against Albert and Shellerud to quiet title in himself to the land in question, to bar and enjoin defendants Albert and Shellerud from asserting any interest therein, and to make them respond in damages for any wrongful withholding of possession of the land. Defendants answered by general denial and pleaded four counterclaims against plaintiff Alvin: (1) unlawful detainer, (2) ejectment, (3) an action to quiet title in themselves to the subject land, and (4) an action to reform the 'Escrow Agreement' and to remove the cloud on the title created thereby. Trial was had before Judge Dignan, sitting without a jury, who subsequently entered findings of fact, conclusions of law, and a judgment (1) declaring the written lease between Albert and Alvin null, void and cancelled, (2) declaring the warranty deed from Albert to Alvin null, void and cancelled, (3) requiring Alvin to pay Albert the 1966 taxes, (4) permitting Alvin to remove two granaries on the land, (5) quieting title in Albert to the land, subject to Shellerud's lease, and (6) requiring Alvin to deliver up to Albert possession of the land including improvements (except the two granaries) and growing crops. Plaintiff Alvin appealed from this judgment.

The issues presented by plaintiff Alvin for review upon this appeal can be summarized in the following manner:

(1) Did Albert agree to convey the subject land to Alvin?

(2) If so, what was the substance of such agreement?

(3) What relief is Alvin entitled to under such agreement?

At the outset it should be noted that plaintiff Alvin's claim for relief herein is bottomed on the existence of an oral agreement or contract by defendant Albert to convey the subject land to Alvin. Although more will be said later in this opinion concerning the written lease, the warranty deed, and the 'Escrow Agreement', all of plaintiff Alvin's claims of ownership of the land flow from one source-an oral agreement or contract claimed to have been made in Conton, South Dakota, in November or early December, 1961, wherein Albert agreed to convey the land to Alvin.

The district court made the following findings of fact concerning this oral agreement:

'That in November or December of 1961 and again in February of 1962, in Canton, South Dakota, the defendant, Albert H. Eliason, and the plaintiff had conversations concerning the farming of defendant's lands involved in this action. There is no satisfactory proof before this Court as to what the agreement was, if any, made at that time.'

The district court also entered the following conclusion of law (in part) relating to this oral agreement:

'That the plaintiff failed in his burden of proof by a preponderance of the...