Bailard v. Marden

Decision Date09 February 1951
Citation227 P.2d 10,36 Cal.2d 703
CourtCalifornia Supreme Court
PartiesBAILARD et ux. v. MARDEN et al. L. A. 21120.

Hiram T. Kellogg, Los Angeles, for appellants.

McGinley & Hanson and Howard D. Hanson all of Los Angeles, for respondents.

EDMONDS, Justice.

Willis R. Bailard and his wife conveyed real property to Muriel Marden. The deed declared that the grant was made subject to all conditions and restrictions of record. By the mistake or inadvertence of the Bailards and their agents, the restrictions of record did not limit the use of the lot to residential purposes. When this situation became known to the Bailards, they sued for reformation of their deed and other relief. The appeal is from the judgment in favor of the Bailards.

In their third amended complaint a mutual mistake by the contracting parties was pleaded for a first cause of action. More particularly, it was alleged that at the time of execution of the agreement of sale and the deed the Bailards did not know lot 21 was within the 'business area', nor did they know or intend to permit its use for other than residence purposes. The same mistaken belief was held by the Mardens at the time they signed the agreement of sale and received the deed. Had the Bailards known the true facts, they would not have sold the lot.

For a second cause of action, the allegations concerning the Bailards' mistake were again stated. It was also charged that the Mardens, at the time of the execution of the agreement of sale and deed, knew of the mistake made by the Bailards or suspected that it existed.

The complaint prayed for reformation of the agreement of sale and the deed to restrict the property to use for a private single-family residence. In the event reformation is not decreed, the Bailards ask for rescission of the conveyance upon restoration of the purchase price and all moneys expended in improving the property, with interest.

The answer denied that any mistake was made by the Bailards. The Mardens pleaded that they purchased the lot for income purposes and, at the time of purchase, formulated the plan of constructing a motel and incidental business buildings. They selected the property because of the opportunity it would afford the family for income and employment, and, prior to the purchase, made an independent investigation of the official records and ascertained the applicable restrictions. In answer to the second cause of action, they denied that they knew or suspected a mistake had been made by the Bailards, or that the property would not have been conveyed to them in the absence of such mistake.

The evidence offered upon these issues shows that Bailard purchased several hundred acres of land from Marblehead Land Co. Prior to the conveyance, the entire tract was restricted for use as private single-family residences. Bailard agreed to purchase the property upon condition that the restriction be changed to give him the right to construct, upon the land adjoining the highway, one motel and buildings for incidental businesses. The restrictions were accordingly amended to provide for a 'business area'. Surveyors employed by Bailard to prepare a subdivision map of the tract were instructed to subdivide only the residence area. By mistake upon the part of the surveyors, a portion of the 'business area' was shown on the map as lots 14 to 25. This subdivided part of the 'business area' is located upon a high bluff as contrasted with the remainder of the area which is relatively flat. The map was signed by Bailard and recorded.

Bailard testified that he purchased the tract for the purpose of subdividing and selling the residential area. His plan was to retain the 'business area' upon which to construct an elaborate motel and incidental business buildings. His selling agent knew of the restrictions upon the property, and instructed the salesmen to inform prospective buyers that the lots were being sold for residential purposes only. All advertisements in connection with the tract, bailard stated, offered the lots for sale as 'home sites', and he first learned of the mistake when construction of a motel was commenced by the Mardens.

The map and advertisements show lot 21 to be the smallest and lowest priced one in the tract. It is situated upon the edge of a bluff and there is evidence that, although ideal for residence property, it is unsuited for business uses. This testimony was offered in corroboration of Bailard's declarations concerning his intentions regarding the property, and his statement that lot 21 would not have been sold in the absence of the mistake made on the map.

As Mrs. Marden related the details of the purchase of the land, while looking for the business property which would give income and employment to the members of her family, she saw signs along the Pacific Coast highway advertising business lots. There were no such signs on Bailard's tract. She was shown lot 21 by one of Bailard's salesmen. She did not inquire of him, or of anyone connected with the seller, about restrictions on lot 21 or other lots in the tract, or whether it could be used for business purposes. However, her son asked the salesman for the name of the owner of the property so he could check the recorded deed with reference to restrictions. When Mrs. Marden was asked on cross-examination for what kind of business she intended to use lot 21, she said no definite plans had been made at the time of purchase; they were to be developed in the future. According to her testimony, she 'just walked on the property and saw where it was sitting, nice and high; it was on a corner, and that it might be possible to put business on the property.'

Mrs. Marden also stated that she and her son examined the recorded restrictions. Thereafter, they went to the property and determined, by use of their automobile speedometer, that lot 21 was within the 'business area'. The son reached the same conclusion by examining a map of the county engineer. They knew from the recorded deed that only one motel was permitted. However, they did not, before their purchase, inquire as to whether any plans for such a building had been approved.

Shortly afterward, Mrs. Marden, her son, and two daughters purchaser lot 21, as a family enterprise 'for a home and income'. The consideration was $$850. Bailard had no direct dealings with the purchasers; all of the negotiations were carried on through his agents who had been instructed to sell residential lots only. The lot was purchased under a...

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37 cases
  • Greenwood & Co. Real Estate v. C-D Inv. Co.
    • United States
    • California Court of Appeals Court of Appeals
    • January 29, 1993
    ...of a unilateral mistake on the part of the Sun Cal defendants which will not support a claim for reformation. (Bailard v. Marden (1951) 36 Cal.2d 703, 227 P.2d 10.) I dissent, however, from the following portion of the majority holding on the "But in whichever of those capacities Sun Cal In......
  • Appalachian Ins. Co. v. McDonnell Douglas Corp.
    • United States
    • California Court of Appeals Court of Appeals
    • August 29, 1989
    ...on which the minds of the parties had met [which] pre-existed [and conflicted with] the instrument in question.' " (Bailard v. Marden (1951) 36 Cal.2d 703, 708, 227 P.2d 10; see also Treadaway v. Camellia Convalescent Hospitals, Inc. (1974) 43 Cal.App.3d 189, 197, 118 Cal.Rptr. 341 ["Reform......
  • Spiegler v. Home Depot U.S.A., Inc.
    • United States
    • U.S. District Court — Central District of California
    • April 9, 2008
    ...share plaintiffs' misconception. Accordingly, the Court grants defendants' motion to dismiss in this regard. See Bailard v. Marden, 36 Cal.2d 703, 708, 227 P.2d 10 (1951) ("Courts of equity have no power to make new contracts for the parties, ... [Nor] can they reform an instrument accordin......
  • Getty v. Getty
    • United States
    • California Court of Appeals Court of Appeals
    • December 12, 1986
    ...of the parties, albeit an agreement based upon a mistaken assumption of fact, an action for reformation does not lie. (Bailard v. Marden (1951) 36 Cal.2d 703, 227 P.2d 10; LeMoge Electric v. County of San Mateo, supra, 46 Cal.2d 659, 297 P.2d 638; 1 Witkin, Summary of California Law (8th ed......
  • Request a trial to view additional results
1 books & journal articles
  • Remedies for Elder Financial Abuse
    • United States
    • California Lawyers Association California Trusts & Estates Quarterly (CLA) No. 22-2, January 2016
    • Invalid date
    ...Code, section 3399; see also Prob. Code, sections 6111.5, 15404, and 21102; Estate of Duke (2015) 61 Cal.4th 871; Bailard v Marden (1951) 36 Cal.2d 703, 708.116. Cardoza v. Millington (1956) 142 Cal.App.2d 26, 32.117. Berendsen v Mclver (1954) 126 Cal.App.2d 347, 356.118. Moore v. Vandermas......

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