Allen v. Allen

• Decision Date: 04 June 1976
• Docket Number: No. 4541,4541
• Parties: Norman B. ALLEN, Jr., Appellant (Defendant below), and Virginia R. Allen (Defendant below), v. Norman B. ALLEN, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1137

550 P.2d 1137

Norman B. ALLEN, Jr., Appellant (Defendant below), and Virginia R. Allen (Defendant below), v. Norman B. ALLEN, Appellee (Plaintiff below).

No. 4541.

Supreme Court of Wyoming.

June 4, 1976.

John M. Daly, Burke, Daly & Maycock, Gillette, signed the brief and appeared in oral argument on behalf of the appellant.

Cecil K. Hughes, Sundance, signed the brief and appeared in oral argument on behalf of the appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

Appellee-plaintiff is the father of appellant-defendant. The plaintiff was the record owner of a tract of land known as the River Place, upon which he lived and farmed. The defendant was raised there and for a time after his marriage, he and his wife lived on the homestead with the plaintiff and his wife before defendant's mother died. The defendant and his then wife, Virginia, a defendant in the district court but not a party to this appeal, wanted a place of their own and found a tract of land to buy, known as the Haptonstall Place. However, it was not a large enough economic unit to qualify for a Farmers Home Administration loan for its purchase.

By interim financing arranged by plaintiff, the Haptonstall Place was purchased in the defendants' names. Both places were then conveyed to a third person, who reconveyed the land to the plaintiff-father, the defendant-son and the defendant Virginia, then the latter's wife, as joint tenants with rights of survivorship. On the same date in 1966, all three parties mortgaged the two tracts as one to the Farmers Home Administration to secure a loan of $10,500.00 to discharge the interim financing obligation.

The plaintiff lived on the River Place; the defendants lived on the Haptonstall Place. The father paid the taxes on the River Place; and the son and his wife paid the taxes on the Haptonstall Place, carried separately for tax purposes on the county tax records. The defendants made the payments on the mortgage.

The defendant and his wife were married in 1953, divorced in 1967, remarried and again divorced in 1974. In the 1967 divorce proceeding, both in their pleadings alleged their real property to be '240 acres of land (Haptonstall Place) and an additional 400 acres of land (River Place) held for financing purposes only, all of which is subject to a real estate mortgage in the amount of Ten Thousand Five Hundred Dollars.' Testimony of the defendant-son in the 1974 divorce action was as follows:

'Q. And in fact that (River Place) was transferred to you in return for your promise to look after him, was it not?

'A No, it was not. It was for security reasons for this mortgage on F.H.A. That is the only reason my name went on that deed.' ¹

The plaintiff contends that the exchange of deeds was arranged and accomplished only for the purpose of creating suitable security so that the defendants could buy the Haptonstall Place at that time. When the Farmers Home Administration mortgage The questions presented on appeal with respect to the circumstances of this case are:

was satisfied, the River Place was to be returned by conveyance to the plaintiff-father. The Haptonstall Place would remain the sole and separate property of the defendants. None of this agreement was in writing but was developed by testimony. The appellant claims the deeds are absolute as on their faces shown. The trial judge found that the 'parties intended, represented and agreed that the lands (River Place) * * * was (sic) to revert and again be the sole property of the plaintiff and the lands and premises (Haptonstall Place) * * * would be the sole property of the defendants.'

1. Does the parol evidence rule preclude reformation of a deed complete in its terms?

2. Is the oral agreement to recovery void as violative of the statute of frauds, § 16-1, W.S.1957, C.1965, in pertinent part, as follows:

'In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith:

'First-Every agreement that by its terms is not to be performed within one year from the making thereof;

'Fifth-Every agreement or contract for the sale of real estate, * * *.'

We have narrated the happenings and proceed on the basis that the parties did orally agree that the transfer of the River Place to the defendants was solely for the purpose of giving them property adequate to secure a loan for their benefit and that upon satisfaction of the mortgage to the Farmers Home Administration, it would be reconveyed to the plaintiff. No consideration passed to the father from the son or his wife. This is done pursuant to the oft-repeated principle that we must assume that evidence in favor of the successful party is true, leave out of consideration entirely evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. Peters Grazing Association v. Legerski, Wyo.1975, 544 P.2d 449, 455, and references there footnoted. Any further facts that may be set out in this opinion are within the evidence shown by the record or may be reasonably inferred.

In broad spectrum, courts give lip service to the familiar rule that a written instrument, absolute on its face, cannot be varied by parol testimony but, as observed in North American Uranium, Inc. v. Johnston, 1957, 77 Wyo. 332, 348, 316 P.2d 325, 330, citing 3 Corbin on Contracts § 329, the rule has so many vagaries that it is the despair of law teachers and law writers. In North American, it is recognized that a transaction may be integrated into a complete document only partially and in that posture, parol evidence is not admissible with respect to the part reduced to writing but parol evidence is admissible to prove that part not reduced to writing. The latter does not contradict or vary the terms of the instrument. Parkinson v. Roberts, 1958, 78 Wyo. 478, 329 P.2d 823, 824; Bachmann v. Hurtt, 1919, 26 Wyo. 332, 340, 184 P. 709, 711. The state of facts here is that the parol evidence received is admissible in that it does not vary the terms of the deed to the straw man and the deed to the defendants but explains their purpose and proves an oral agreement to reconvey entered into previous to their execution. ² The defendant himself has established the agreement and he is bound by the doctrine of judicial estoppel. In the earlier divorce litigation, the defendant's son, in order to prevail with respect to the ranch property as against his wife, had to rely on his agreement with his father that he held the River Place in his name only for the purpose of furnishing security to the Farmers Home Administration to enable him to borrow money to buy the Haptonstall Place.

The principle, while denominated judicial estoppel, is sometimes referred to as a doctrine which estops a party to play fast and loose with the courts or to trifle with judicial proceedings. It is an expression of the maxim that one cannot blow hot and cold in the same breath. A party will just not be allowed to maintain inconsistent positions in judicial proceedings, as here. 31 C.J.S. Estoppel § 117, pp. 624-625. ³

The role of judicial estoppel has been accepted in this state. Hatten Realty Co. v. Baylies, 1930, 42 Wyo. 69, 89-93, 290 P. 561, 72 A.L.R. 587. It was there held that where a man is successful in a position taken in a previous court proceeding, that position rises to the position of conclusiveness. It constitutes a solemn and sworn acknowledgment of the correctness of plaintiff's claim. Following the same reasoning reached in Hatten, it would be highly inequitable for the defendant to have a decree in his divorce case holding the property not to be his and at the same time be held the owner of an interest in this proceeding. It is that very inconsistency that judicial estoppel will not tolerate. Defendant's statements in the previous action are the very highest order of evidence against him and are entitled to judicial sanctity. He cannot play hanky-panky with the courts of this state and thus interfere with the integrity of the judicial system. See Parkinson v. California Co., 10 Cir. 1956, 233 F.2d 432, 437-438, for a discussion of Hatten.

We are not a bit concerned that the matter of judicial estoppel was not raised in the lower court or argued by either of the parties. This court has general superintending control over all the courts of the state ⁴ and the Wyoming judicial system in general. It is our duty to protect its integrity and prohibit dealing lightly with its proceedings. We are at liberty to decide a case upon any point which in our opinion the ends of justice require, ⁵ particularly on a point so fundamental that we must take cognizance of it. ⁶

We hold the parol evidence of the whole agreement admissible under the circumstances of this case.

Now, for the statute of frauds and its applicability. The very language of part Fifth of the statute leaves it inapplicable. There was no contract for the sale of lands; the title was lent for a specific purpose. The agreement involved no sale in any sense of the word, let alone its ordinary sense. A contract for the sale of real estate contemplated by the statute of frauds, § 16-1, W.S.1957, C.1965, is one for the transfer of property or real estate, for a fixed price in money, or its equivalent. Mecum v. Metz, 1924, 30 Wyo. 495, 503, 222 P.2d 574, 576, reh. den. 32 Wyo. 79, 229 P. 1105.

The agreement may fall within the terms of part First of the statute so we still must concern ourselves with the applicability of that provision, assuming that technically the words embrace the oral agreement with which the court is confronted. At the time the contract was made, it could have reasonably been anticipated that the mortgage to the Farmers Home Administration would be in force for over a period of one year....