Epletveit v. Solberg , 119 Mont. 45 ( 1946 )

I recognize the futility of dissenting opinions, and hesitate to uselessly encumber the already over-stuffed reports. Nonetheless, I must refuse to surrender my convictions, or to subscribe, as a measure of expediency, to a judgment with which I thoroughly disagree and which I believe ill-considered.

I agree, of course, with the abstract principles expounded in the opinion, but must insist their inapplicability to the facts. The findings of the trial court (historically and popularly supposed to be the trier of facts and weigher of evidence in such cases) are amply supported by the conflicting evidence. Such evidence, I feel, has been supplanted by the author of the prevailing opinion by speculative assumptions not supported by the record.

I shall not review the pleadings or evidence, except to point out that the contract relied upon by the defendant consists of a unilateral, so-called "Receipt For Payment on Land," in the following language:

"I, the undersigned, Gunder Epletveit, do hereby acknowledge receipt of the sum of one dollar ($1.00) paid to me by Martin S. Solberg, it being understood and agreed that I will sell to him the following described land in Toole County, Montana, at and for the sum of three hundred twenty dollars ($320.00) when the title to said land has been quieted thru court proceedings, or otherwise, reserving thereout and therefrom unto myself all of the oil, gas and other minerals in and under said land. The balance of $319.00 to be paid to me immediately upon my executing and delivering to said Martin S. Solberg a deed to said land.

"The land above referred to is described as the south half of the northwest quarter of Section 3 in Township 33 North, Range 2 West, M.P.M.

"Dated at Shelby, Montana, this 18th day of September, 1943.

"(Signed) Gunder Epletveit."

The testimony shows some preliminary negotiations between Epletveit and Solberg, the agreement being reduced to writing in the instrument quoted. Obviously this instrument does not expressly confer a present right of possession in Solberg. And even though the preliminary verbal discussions between these parties be considered a part of the contract, it is still impossible to find an implied provision for such possession. In the absence of such expressed or implied provision, the trial court correctly held that the defendant was not entitled to present possession. Havens v. Alameda County, 30 Cal. App. 206,157 P. 821; Jones Cyc. of Real Property, Perm. Ed., Vol. 1, p. 612; Tiffany Real Property, 3rd Ed., Vol. 1, sec. 307; First Nat. Bank of Galata v. Montana Emporium Co., 59 Mont. 584,197 P. 994; Cartin v. Hammond, 10 Mont. 1, 24 P. 627; Barrell v. Britton, 244 Mass. 273, 138 N.E. 579, 28 A.L.R. 1065, and annotation; Burnett v. Caldwell, 9 Wall, 290, 19 L. Ed. 712.

The majority, with respect to the right to possession, cite Kern v. Robertson, 92 Mont. 283, 12 P.2d 565, 567. The citation is not complete, however, for this significant language is omitted: "The maxim underlying the doctrine of equitable conversion rests on a duty to do something, and until the option is exercised there is no duty and it cannot be known whether there ever will be a duty. Hence, conversion should not be presumed as of a date earlier than the date when the duty becomes certain, as that would be unreasonable and the same in effect as if the duty existed from the outset." Here, of course, Epletveit's obligation depended upon the occurrence of an uncertain event at some indefinite time in the future or never. It must be pointed out that time was not made an essential part of the contract, if it may be termed such, no reference is made to possession by Solberg, no provision as to improvements or to payment of taxes by him. Under defendant's contention he would apparently be entitled to the profit from the use of the land indefinitely, without sharing the same with the landowner, or even paying the taxes.

The function of this court is to interpret contracts, not to make them, a principle which has been adhered to since the court's inception.

I think the majority have overlooked the important question presented, that is, whether Flesch or whether Solberg is entitled to possession. It seems clear to me that the record sustains the trial court's finding that the former's leasing agreement is valid and in force and effect, and superior to any rights of the latter. What rights Solberg may have by virtue of the instrument under which he claims, aside from that in issue, this court is not called upon to determine. But any such rights as he may have as against the landowner, under the circumstances, should not be permitted to deprive Flesch of the benefits of his agreement, correctly defined by the trial court.

Rehearing denied June 24, 1946.