Johnson v. Johnson, 13380

Decision Date16 March 1977
Docket NumberNo. 13380,13380
Citation561 P.2d 917,34 St.Rep. 162,172 Mont. 150
PartiesKenneth F. JOHNSON, Plaintiff and Appellant, v. Howard R. JOHNSON and Carrie M. Johnson, Defendants and Respondents.
CourtMontana Supreme Court

Habedank, Cumming & Best, Otto T. Habedank, argued, Sidney, for plaintiff and appellant.

John M. McCarvel, argued, Great Falls, for defendants and respondents.

HASWELL, Justice.

Plaintiff filed an action against his brother and his brother's wife seeking (1) a reconveyance of a half section of farmland to him, (2) to quiet title to the land, and (3) an accounting of crop proceeds. The district court of Sheridan County, the Honorable L. C. Gulbrandson, district judge, presiding, granted summary judgment to defendants. Plaintiff appeals.

Plaintiff's complaint in essence alleges a conveyance by him to his brother in 1953 by warranty deed absolute on its face; that the deed was given without consideration and upon an express oral agreement to reconvey; and a request for and refusal to reconvey on October 2, 1974. The complaint seeks to impress a trust on the land and compel a reconveyance to plaintiff.

Defendants' answer in substance denies the existence of an oral agreement to reconvey or any trust in the land and sets up the following affirmative defenses: (1) Laches, (2) estoppel, (3) statute of limitations, (4) waiver, (5) statute of frauds, and (6) adverse possession.

Pretrial discovery consisted of interrogatories by defendants and answers by plaintiff, depositions of plaintiff and both defendants, and documentary exhibits. Defendants moved for summary judgment which was granted by the district court.

The single issue on appeal is whether summary judgment was proper.

The record before the district court disclosed that John P. Johnson, father of plaintiff Kenneth Johnson and defendant Howard Johnson, owned a farm in Sheridan County, Montana. In December 1952, the father and his wife deeded a half section of the farmland to Kenneth and another half section to Howard. At that time Kenneth was a single man with the United States Air Force in California.

In May 1953, the father traveled to California to secure a conveyance from Kenneth of his half section of the farmland. Although a dispute exists concerning the reason for this, the record establishes it was for one or both of these reasons: (1) As an estate planning precaution should Kenneth lose his life in the Korean conflict, (2) for fear the land would be lost in potential legal action arising out of Kenneth's involvement with a married woman. According to the record, the original idea was for Kenneth to transfer the land to his married sister. Arlene Petersen, who lived in California. However, she indicated Howard would be better able to take care of the land as he was living on the farm. By deed dated May 12, 1953, Kenneth conveyed the half section of land in question to Howard. This deed was absolute on its face and made no mention of a trust. On the face of the deed appeared $8.80 in federal documentary stamps indicating a consideration of $8,000 for the transfer. The documentary stamps were dated and initialed with Kenneth's initials. Kenneth denies receiving any money or consideration for the deed or transfer.

Kenneth signed and filed a federal gift tax return covering the calendar year 1953. He stated in this return that the transfer was a gift, that the value of the land at the time of transfer was $8,000 and that no trust was created.

Kenneth was discharged from the military service and returned home to Sheridan County in December 1955.

Thereafter Kenneth and Howard farmed the entire section of land. Kenneth, Howard and their father each received a share of the crops until the death of the father in November 1965. Following the father's death, Kenneth and Howard continued to farm the land with each receiving a share of the crop. The precise arrangement on sharing the crops, payment of taxes, and sharing of expenses is a subject of dispute in the record.

Kenneth married in 1959. An exhibit to Howard's deposition is a letter from their father to Howard dated January 2, 1960, stating 'Kenneth knows that he has not any title or right to any of the homestead or half sec. that I bought from Sparling' and that Kenneth told him it would not work 'so he don't need to tell himself or anyone that that 1/2 sec. is his'. Kenneth denied knowledge of this letter. In March 1965, conveyances were executed by Howard and his wife vesting the half section of land in question in themselves as joint tenants. The deeds creating the joint tenancy were recorded in the office of the clerk and recorder of Sheridan County on March 1, 1965.

In 1968, Kenneth secured a loan from the Production Credit Association. In the loan application he was asked to list the land he owned. Kenneth admitted in his deposition that he did not list the half section in question.

In 1971, Howard mortgaged some land to the Federal Land Bank for $56,000. Included in the mortgage was the half section of land in question.

In 1973 and 1974, Kenneth delivered 1/3 of the crop to Howard pursuant either to an agreement between Howard and Kenneth or at Howard's request.

During the years they farmed the section of land together Kenneth listed his income as a share of the crops sold.

Kenneth's answers to defendants' interrogatories state there was an oral agreement by Howard to reconvey the land made at the farm in Sheridan County in December 1952, and in San Mateo, California in May 1953; that he has not writing substantiating this; that the witnesses to the oral agreement were himself, Howard, their father, and their sister, Arlene Petersen; that he deeded the property over to Howard at the request of his father and sister, Arlene Petersen; that he did not request recovery prior to October 2, 1974, because he had no reason to believe Howard was holding the land other than as a trustee prior to that time; that he in effect paid taxes on his half section by dividing the crops equally because his half section had more farmland than Howard's half section and Howard received the use of feed grown to offset the payment of taxes.

Kenneth's deposition reflects similar testimony in considerably more detail. Additionally, it indicates that on June 30, 1964, he went with Howard to Ludwig Tande's office in Plentywood, Montana, and signed an affidavit that he was single when he deeded the half section to Howard to enable Howard to mortgage the land in question.

No deposition was taken of Arlene Petersen, their sister.

The basis of the summary judgment granted defendants as reflected in the district court's order was: (1) There was no genuine issue as to any material fact; (2) Kenneth was guilty of laches; (3) he is estopped to allege ownership in the land; (4) his action is barred by the statute of limitations; and (5) he has waived any right, title or interest in the land.

The law relating to summary judgments, Rule 56, M.R.Civ.P., has been construed in detail in a long line of Montana cases and recently was substantially summarized in Harland v. Anderson, Mont., 548 P.2d 613, 615, 33 St.Rep. 363, 365. In essence summary judgment is not a substitute for a trial; it can only be granted where the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law; and where the absence of any genuine issue of material fact is disclosed by the record, the burden is on the party opposing summary judgment to come forward with evidence creating a genuine issue of material fact to be determined at trial. In Harland the Court said:

'The primary policy and general purpose underlying Rule 56, M.R.Civ.P., is to encourage judicial economy through the prompt elimination of questions not deserving of resolution by...

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8 cases
  • Wellman v. Wellman
    • United States
    • Montana Supreme Court
    • September 8, 1983
    ...Dillon (1943), 114 Mont. 395, 136 P.2d 760; and cited in Davis v. Steingruber (1957), 131 Mont. 468, 311 P.2d 784 and Johnson v. Johnson (1977), 172 Mont. 150, 561 P.2d 917: "Laches, considered as a bar independent of the statute of limitations, is a concept of equity; it means negligence i......
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    ...record discloses no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Johnson v. Johnson (1977), 172 Mont. 150, 561 P.2d 917; Anderson v. Applebury (1977), 173 Mont. 411, 567 P.2d 951. This Court has consistently held that the party moving for......
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    • August 18, 1977
    ...146 Mont. 307, 406 P.2d 167. Nevertheless, summary judgment is not a substitute for a trial. Guthrie, supra; Johnson v. Johnson, Mont., 561 P.2d 917, 34 St.Rep. 162. This Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of......
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