                                      No.      95-270
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                            1996
JOHN P. DAUGHERTY,
              Plaintiff        and Respondent,
         v.
TRESSIE E. DAUGHERTY,




APPEAL FROM:          District  Court of the Tenth Judicial    District,
                      In and for the County of Fergus,
                      The Honorable John R. Christensen,    Judge presiding.


COUNSELOF RECORD:
              For Appellant:
                      Torger     S. Oaas, Lewistown,       Montana
              For Respondent:
                      Timothy     Jr O'Hare,     Lewistown,      Montana


                                      Submitted     on Briefs:       January    18, 1996
                                                        Decided:     February    22, 1996,
Filed:
Justice       William         E. Hunt,         Sr. delivered           the Opinion                of the Court.

        Pursuant         to Section            I,   Paragraph         3(c),       Montana Supreme Court
1995 Internal           Operating            Rules,     the following             decision           shall     not be
cited      as precedent           and shall         be published            by its        filing      as a public
document with           the Clerk            of this      Court      and by a report                of its     result
to State        Reporter        Publishing            Company and West Publishing                        Company.
        Appellant,            Tressie        Daugherty       appeals         the judgment            of the Tenth
Judicial        District         Court        of    Fergus        County,       granting           the plaintiff
and        respondent,           John         P.      Daugherty,            a     declaratory                judgment
establishing            his     present        interest        in certain           real      property.
          We affirm.
          The    sole         issue     presented            for     our        review        is     whether       the
District        Court         erred     in    finding        that     Tressie        Daugherty            (Tressie)
had delivered            the deed to the Spring                     Creek property               to her son John
Daugherty         (John).
                                                        FACTS
           In September          1975, Tressie            and her husband Paul                     (now deceased)
purchased         a house in Lewistown,                      Montana,           located       on Spring          Creek
Road,       (Spring        Creek property).                  In October           of the           same year,       the
deed was properly                recorded.             Tressie       and Paul's            son,      John,     worked
road       construction           and moved into               the     residence            in     1976 with        his
parents'        permission.             John lived           there     for       about      six     months out of
the year during               the off-season,             until      1993.        Tressie          moved into       the
house in either                1979 or 1980, and was joined                        shortly          thereafter          by
Paul.


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           On May 12,                 1982,          Tressie               and Paul                  executed               a deed transferring
the     Spring               Creek           property                 to         Tressie,                   Paul,           and         John          as      joint
tenants            with         rights             of      survivorship.                               The warranty                      deed         was         then

properly            recorded.                      About          four           to       six         weeks           later,            Paul         told         John

about        the       deed and its                     recording.                        At trial,                  Tressie            testified                 that

she     believed                the          effect              of        the         1982            deed           was      only            to     transfer

ownership              of       the         Spring              Creek        property                      to        John      upon          the      death           of

both       she and Paul.                       She testified                          that            she did            not       believe             the        deed

granted            John       a present                   ownership                   interest.                      John      testified                   that       he
believed             he held                 a joint               interest                     in         the       property                but,      that           he

would        not       have        complete                 ownership                     until             after           both        of     his      parents

were       deceased.

           From        1982        through                1992,            Tressie,                   Paul,           and John                all     lived           in

the     house             and      worked               together                  on        improving                   the        property.                      Paul
Daugherty               died           in     November                 1992.                After                which,           John         and         Tressie

continued               to      live          in     the         house.

           After             Paul's            death,              Tressie                 and             John       became            the          owners           as

surviving               joint          tenants.                  In 1993,                  a dispute                   arose        between                Tressie

and John             regarding                     what         John        considered                          to    be an invasion                         of     his

privacy.               During               this        time,         Tressie                   contacted                 legal         counsel              to     see

if     she      could           remove              John's            name from                       the         deed        and evict                him         from

the     premises.                     John          moved          out       voluntarily.

           In      March          1994,             Tressie             presented                      John          with      a deed,                and asked

him     to      quit         claim           his        interest                 in the               Spring           Creek        property.                      John

refused.                  John         brought              suit           against                   his         mother        under            the         Uniform

Declaratory                   Judgment               Act,          55 27-s-101,                            et.        seq.,        to        determine              the
validity               of     a recorded                    warranty                  deed.                 A bench            trial            was         held         on

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March         2,    1995,           after          which           a judgment                    was      entered            declaring                    the

deed     to        be valid,                and      that           John         presently               held         a joint                interest
with         his        mother          in         the.       Spring                Creek         property                with          rights             of

survivorship.                       Tressie          appeals.

                                                                   DISCUSSION

         Whether              the      District               Court            erred        in     finding            that            Tressie             had

delivered               the     deed         to     the       Spring             Creek         property              to     her        son John?
         The standard                   of        review           for        a district               court's            findings             of fact

is      whether               the       findings                   are          "clearly               erroneous.                'I     Interstate

Production               Credit         Association                      v.    DeSaye            (1991),            250 Mont.               320,        323,

820 P.Zd            1285,           1287.           We review                  a district                court's            conclusions                     of

law     to     determine               whether               the         court's           interpretation                        of     the        law      is

correct.            In re Marriage                      of     Barnard                (1994),           264 Mont.                103,         106,        870

P.2d       91,      93.
           At trial            and on appeal,                       it        has been Tressie's                          position             that         it

was     neither               her      nor        her        husband's                intent            to     give         John            a present

interest            in        the     Spring            Creek            property              when          they     executed                 the        May

12,      1982           deed.            Absent               their             intent            to      grant            John          a     present

interest,               Tressie          contends                the          deed was in               effect            never         delivered.

           A grant             of      property               takes             effect           only         upon         delivery                by      the

grantor.                  Section             70-l-508,                       MCA;       Romain           v.        Earl          Schwartz                 Co.

 (1989),           238 Mont.                500,          503,       779 P.2d               54,        55-56.              Delivery                can      be

accomplished                   by words,             acts,           or both.                  In Montana,                 the        law     does not

require            the        actual          handing              over          of      the      document            so         long         as     it     is

handled            in     a way that                unequivocally                      shows           the     grantor's                intention.

Hauseman            v.        Koski          (1993);             259 Mont.                 498,         502,        857 P.2d                715,          717.

Accordingly,                    the      intent              to pass             a present               interest             in       property             is

                                                                                4
an essential                 element                of delivery.                         Gross       V. Gross               (1989),               239 Mont.

480,      781 P.2d                284;            Bodine         v.     Bodine              (1967),           149 Mont.                 29,        422 P.2d
650;          Roth          v.         Palutzke                  (19601,                 137        Mont.           77,         350           P.2d            358;

Cleveland-Arvin                         v.        Cleveland               (1950),              123 Mont.               463,            215 P.2d               963.

          A presumption                           of delivery                 is     created            when a deed has been                                  duly

executed              and acknowledged,                                and the             presumption                 is       strengthened                      by

the      recording                of        the     deed.              -,
                                                                       Roth          350 P.2d            at      360.           When a deed has

been          properly             recorded                    the      presumption                     of      delivery                    can     only          be

overcome              by     "clear                and         convincing                 evidence."                   Gross,               781       P.2d        at

285.
              In     the         Gross            case,          the          father           executed                and        recorded                three

warranty              deeds            transferring                      real            property            from         the          father            to    the

father             and the         son as joint                        tenants.                The father               retained                  the     deeds

in      his        possession,                    and continued                      to     occupy            and maintain                        the       land.

After          executing                    and recording                      the        deeds,         the        father              told          the      son

that          he had             placed             his         name on              the       property                as    a joint                    tenant.

Later,             when the             father             asked         the         son to          reconvey               the        property,               the

son       refused.                     This         Court              held         that         the         father,              even            though          he

remained              in     control               of      both         the        documents             and the             deeded               land,        had

not       overcome                 the            presumption                   of        delivery              raised                 by     recording.

Gross,              781 P.2d                at     286.

              On appeal,                    Tressie             argues             Gross       is      distinguishable.                                 Tressie

contends              there            is        ample         evidence             to overcome                the presumption                           raised
by the              1982 recording                        of     the     deed.              In a memorandum                        supporting                   its

judgment,                  the         District                 Court          reviewed                the      facts             in        Gross.              The

court              found     that            in     comparison                  to the           Gross         case,         the            instant           case



                                                                                     5
presented               a      more         compelling                     argument                    for          the         presumption                      of
delivery.
          The      District                Court           found           Tressie's                   statements                    regarding              her

lack      of     understanding                     of      the       effect            of        the        deed were                not        clear       and

convincing.                    A grantor's                 self       serving                statements                   are        not        enough           to

overcome           the       presumption                   of delivery.                      Gross,                781 P.2d               at 286.           And

although           Tressie               retained               possession                  of     the           deed      and continued                         to

occupy          and control                 the         land,       the        court         found               this      did        not       rebut       the
presumption                  of     delivery.                       This        Court             has            held      that           evidence               of

particular                   subsequent                   acts            is        not           sufficient                     to         rebut           the

presumption                  when         a close               relationship                     exists             between               the       grantor

and grantee.                   Gross,         781 P.2d                at       286;         Roth
                                                                                            -r               350 P.2d                at      360.

          We agree                with      the          District              Court.              The instant                       case         presents

a stronger               argument                 for      the       presumption                       of        delivery.                  Unlike          the

parties            in        the         Gross            case,            Tressie                and            John          exercised                 joint

dominion               and        control           over            the        Spring             Creek             property                for         eleven

years          prior         to     the      dispute.

                We hold              the          District                Court's                 findings                were            not       clearly

erroneous,               and the             court's              interpretation                            of     the         law     was correct.

The May 12,                 1982 deed created                         a present                   interest                in     the        property             to

Tressie,               Paul,       and John.                     We affirm                  the        District                Court's            grant          of

 a judgment              for       the      plaintiff,                    John,        declaring                    his        present            interest

 in    the       Spring           Creek       property.
            Affirmed.




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We Concur:




             Justices
