Berendsen v. McIver

• Court: California Court of Appeals
• Writing for the Court: BRAY
• Citation: Berendsen v. McIver, 126 Cal.App.2d 347, 272 P.2d 76 (Cal. App. 1954)
• Decision Date: 30 June 1954
• Docket Number: No. 15992,15992
• Parties: BERENDSEN v. McIVER.

Page 76

272 P.2d 76

126 Cal.App.2d 347

BERENDSEN v. McIVER.

No. 15992.

District Court of Appeal, First District, Division 1, California.

June 30, 1954.

Hearing Denied Aug. 26, 1954.

Harrison W. Call, Sacramento, for appellant.

Tinning & DeLap, Dana Murdock, J. Vance Porlier, Richmond, for respondent.

BRAY, Justice.

In an action to reform a deed and to quiet title, defendant appeals from a judgment in favor of plaintiff.

Questions Presented:

1. Sufficiency of the evidence.

2. Sufficiency of complaint.

3. Is the action barred by section 338, subdivision 4, and section 353, Code of Civil Procedure?

4. Admission of oral testimony.

5. Was administrator incompetent to testify?

Facts.

In 1945, Andrew P. Berendsen, who died June 13, 1948, and Hugh Alexander McIver, who died November 27, 1950, were business partners. In a deed delivered sometime in July, 1945, and recorded August 7, 1945, they were named as joint tenant grantees. The complaint alleged that the property was purchased by them as tenants in common, but that by mistake of the scrivener a 'joint tenancy' form deed was used. The complaint seeks to have the deed reformed to one of tenancy in common. The instructions given by Berendsen and McIver to the title company which drew the deed, authorized the company to deliver all documents when title 'to said property [is] vested of record in Hugh A. McIver, a married man, and Andrew P. Berendsen, a single man.' There is no evidence of any instructions to the title company that the deed should be in joint tenancy. Both grantees were dead at the time of the trial. After Berendsen's death an undivided one-half interest in the property was listed in the inventory in his estate. McIver stated to the attorney for the estate that he would sell to the estate his one-half interest in the property for $4,500, or would sign a deed if the estate could sell the whole parcel for $1,000 per acre. Later McIver made a written offer to pay the estate $5,000 for 'a clear title to the land in said partnership of McIver & Berendsen.' He deposited with the estate's attorney $500 on account of the offer. The half interest was appraised in the estate at $6,000. The offer was rejected as not being 90 per cent of the appraised value. McIver requested the executor of the Berendsen estate to sign with him a check drawn on the partnership account to pay taxes on the property. The executor did. In the McIver estate, appellant administratrix listed in the inventory an undivided one-half interest only in the property. Under the heading 'Property Held in Joint Tenancy' were three other parcels, not including the property in question.

The real estate broker who handled the purchase transaction testified that McIver instructed him to the effect that he wanted the deed in joint tenancy of himself and partner. The broker received no instructions from Berendsen. McIver's daughter loaned McIver $2,300 for his share of the purchase price. She testified that her father told her the deed was in joint tenancy.

1. Sufficiency of the Evidence.

It is obvious from the foregoing recital that the parties treated the property as held in tenancy in common and not in joint tenancy, and that there was sufficient evidence together with the reasonable inferences therefrom to support the court's finding that the deed being in joint tenancy was due to the mistake of the scrivener.

The testimony of the real estate broker and McIver's daughter merely created a conflict in the evidence, which conflict the trial court resolved in favor of plaintiff. It should be noted in this behalf that McIver's own acts in treating the Berendsen estate as owning a half interest in the property are in themselves a refutation of the testimony of the broker and the daughter.

'In 45 Am.Jur. pp. 618-619 this is said: 'A mutual mistake of their agents is not necessarily a mistake of the parties. Undoubtedly, it would be * * * where the mistake was made by a scrivener who acted as common agent of both parties in drafting the instrument; * * *.'' Mills v. Schulba, 95 Cal.App.2d 559, 562, 213 P.2d 408, 410.

The facts in this case are concisely summed up in the following statement of the trial judge, Honorable Norman A. Gregg, at the end of the trial: 'Gentlemen, very frankly, I don't have any trouble with the facts of this thing. On the one side is the fact that this deed very obviously is in the form of a joint tenancy deed, but it's inescapable to me that everybody considered to the contrary. It was listed in both estates. There was testimony that after Mr. Berendsen's death Mr. McIver went and asked the executor to draw a check to pay the taxes on it. Mrs. McIver in the inventory of her estate and in the divorce action stated they had a half interest in it.'

2. Sufficiency of Complaint.

The complaint is poorly drawn, but not fatally defective. No demurrer to it was filed. Defendant moved to dismiss and for judgment on the pleadings on the ground that the action was without merit and not brought in good faith, the alleged cause of action fictitious and a sham, that plaintiff was guilty of laches and the cause of action barred by the statute of limitations. The court denied the motion. Sections 581 to 583, Code of Civil Procedure, dealing with dismissals, do not provide for dismissal because of laches or the bar of the statute of limitations. 'The bar of the statute of limitations to an action * * * should be set up by demurrer, or in an answer, and not by motion to dismiss.' Everts v. Blaschko, 17 Cal.App.2d 188, 190, 61 P.2d 776, 777.

The complaint alleges that the parties purchased the property as tenants in common and that the scrivener, in drawing the deed, by mistake, used a form deed entited 'Joint Tenancy Deed'; that said deed conveyed title as joint tenants instead of tenants in common; that the mistake was not discovered during the lifetime of either Berendsen or McIver but was discovered 'by the parties hereto' on June 29, 1951, and that after demand by plaintiff, defendant refused to rectify the error and claims to be the owner to the exclusion of plaintiff's right and title. While the complaint would not be sufficient against special demurrer had one been interposed, it sets forth facts sufficient to constitute a cause of action for reformation of the deed due to the scrivener's mistake in drawing it. 'Appellants' attack on the amended complaint comes at a late date, for they did not demur. 'In the absence of a demurrer, great liberality has been indulged in order to sustain faulty complaints in actions to reform contracts', Auerbach v. Healy, 174 Cal. 60, 63, 161 P. 1157, 1158, and our only inquiry is whether the pleading is sufficient as against a general demurrer.' Mills v. Schulba, supra, 95 Cal.App.2d 559, 561, 213 P.2d 408, 410. The rule is the same as to motions for judgment on the pleadings. See Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 157 P.2d 1. 'Our courts have repeatedly held that the mistake of a draftsman is a good ground for the reformation of an instrument which does not truly express the intention of the parties. 22 Cal.Jur., p. 719 and cases cited; See, also, Merkle v. Merkle, 85 Cal.App. 87, 107-108, 258 P. 969.' Mills v. Schulba, supra, 95 Cal.App.2d at page 561, 213 P.2d at page 410. Ordinarily where the application of the state of limitations might be an issue, it is not enough in an action based on mistake merely to allege failure to discover the mistake earlier, but the reasons for such failure and the circumstances of the discovery must be given. See Lady Washington Consolidated Co. v. Wood, 113 Cal. 482, 486, 45 P. 809; People ex rel. Post v. San Joaquin, etc., Ass'n., 151 Cal. 797, 91 P. 740; Shapiro v. Equitable Life Assur. Soc., 76 Cal.App.2d 75, 88, 172 P.2d 725. But it has likewise been held that the failure to so allege can be raised only by a special demurrer or a general demurrer which specifies the applicable statute of limitations. Thus in Graham v. Los Angeles First Nat. Trust & Savings Bank, 3 Cal.2d 37, 43 P.2d 543, a general demurrer to the third amended complaint was sustained without leave to amend. Upon appeal from the judgment rendered thereon the court stated that the complaint, as here, merely gave the date of the discovery of the fraud charged, but did not set forth the circumstances of the discovery. The court said, 3 Cal.2d at pages 43-44, 43 P.2d at page 546: '* * * respondent relies upon the rule set out in Consolidated R[eservoir & Power] Co. v. Scarborough, 216 Cal. 698, 16 P.2d 268 and Lady Washington C[onsolidated] Co. v. Wood, 113 Cal. 482, 486, 45 P. 809. In both these cases demurrers specifically setting up the statute of limitations had been interposed. It may be conceded that these cases are definite authority for the rule that if the defense of the statute of limitations is properly presented, the complaint is vulnerable unless it shows facts and circumstances surrounding the discovery of the fraud from which the court may decide that the facts and circumstances furnish justification for a suspension of the statute until the discovery of the facts constituting fraud. In the instant case, however, the defense of the statute of limitations was not interposed. The demurrer was a general demurrer which did not specify the statute of limitations. Although the defense may be raised by a general demurrer, such demurrer must specify that the ground relied on is the bar of the statute of limitations.'

Other cases holding that the failure to allege the reason for the delay in discovering the alleged fraud or mistake and the circumstances of the discovery, can be attached only by special or general demurrers specifying the applicable statute of limitations, are Gillis v. Pan American Western Petroleum Co., 3 Cal.2d 249, 44 P.2d 311; Turner v. Milstein, 103 Cal.App.2d 651, 230 P.2d 25; Bank of America, etc., Ass'n v. Ames, 18 Cal.App.2d 311, 63 P.2d 1208. A rather unique decision on the...