Bird v. Mayo
| Decision Date | 31 December 1914 |
| Citation | 75 Or. 100,145 P. 13 |
| Parties | BIRD v. MAYO ET AL. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.
Suit by Clara S. Bird against Lucretia Mary Mayo and another. From decree for defendants, plaintiff appeals. Reversed and rendered.
John H. Hall, of Portland, for appellant. H. W. Hogue of Portland, and G. C. Fulton, of Astoria (Milton W. Smith of Portland, on the brief), for respondents.
This is a suit to correct a mistake alleged to have been mutually made by the parties in a conveyance from the plaintiff to the defendant Lucretia Mary Mayo. It appears that at the date of the conveyance the plaintiff was the owner of lot 10 in block 2 of Ocean Grove Annex in Clatsop county, Or. The plats in evidence show that block to consist of a row of lots lying between Broadway street and the ocean beach. Beginning at Broadway, the lots are numbered consecutively from east to west from 1 to 10, inclusive. All of them to and including 9 are of the uniform width of 50 feet. Lot 10 next to the sea is of much greater area, and, as it fronts upon the sands, is irregular in shape on the western boundary. The deed itself calls for lot 10 in block 2. The plaintiff contends that both parties mutually understood that the actual ground conveyed was to be that portion only of lot 10 lying west of a line parallel with its eastern boundary and 50 feet distant therefrom. The defendants, as usual in such cases, deny the mistake and assert that the deed was drawn and executed according to the actual intention of the parties at the time.
It is a judicial platitude to say that it is incumbent upon the plaintiff to show precisely in what the mistake consisted and that it was mutual, all of which must be made to appear by clear and convincing testimony. Newsom v. Greenwood, 4 Or. 119, 123; Ramsey v. Loomis, 6 Or. 367, 374; Remillard v. Prescott, 8 Or. 37, 43; McCoy v Bayley, 8 Or. 197; Foster v. Schmeer, 15 Or 363, 368, 369, 15 P. 626; Epstein v. State Ins. Co., 21 Or. 179, 181, 27 P. 1045; Parker v. Thomson, 21 Or. 523, 529, 28 P. 502; Kleinsorge v. Rohse, 25 Or. 51, 58, 34 P. 874; Thornton v. Krimbel, 28 Or. 271, 274, 42 P. 995; King v. Holbrook, 38 Or. 452, 460, 461, 63 P. 651; Stein v. Phillips, 47 Or. 545, 549, 550, 557, 84 P. 793; Pope v. Hoopes (C. C.) 84 F. 927, 929; Pom. Equity Jur. (3d Ed.) § 862.
It is impracticable to set out more than the salient points of the testimony. According to her contention, the plaintiff had sold to another party what she supposed was lot 8 in that block, and proposed to sell to Mrs. Mayo all the remainder of the block between that and the ocean, reserving lot 9 whereon to place a residence which she intended to build for herself. The substance of the testimony on behalf of the plaintiff is to the effect that the defendant Martin Mayo, representing his wife, the other defendant, applied to the plaintiff to buy realty fronting on the ocean. She, in company with her sister-in-law, accordingly went with him upon the premises where she pointed out the ground she had already sold upon which was afterwards erected a hotel called Lockesley Hall Annex. She showed Mayo a stake 50 feet west of the lot occupied by Lockesley Hall Annex and told him that she would sell all west of the stake. The defendant declined to purchase at the price set, but afterwards, when the plaintiff met Mayo in Portland, he inquired if she had yet sold that property, with the result that after some negotiations they agreed upon a price, and the defendant Martin Mayo caused a deed to be drawn conveying to his wife from plaintiff all of lot 10. There is no question made but what the plaintiff knew that the deed was written so as to include all of lot 10, because she looked it over at the time she signed it and understood its literal contents. The testimony further tends to show on behalf of the plaintiff that the defendants took possession of the property bounded on the east by the line 50 feet west of and parallel with the eastern boundary of the lot, constructed a fence on the line thus dividing lot 10, erected two houses west of the fence fronting the ocean, and sold to one King 40 feet off the east end of his holding which he told King to take, immediately west of of the fence already mentioned. The deed to King described the 40 feet as the easterly 40 feet of lot 10 bounding it by beginning at the southeast corner, running thence northerly along the east line of the lot, and so on around to the place of beginning. King built his residence west of the fence more than 50 feet from the actual eastern boundary of the lot, as he says, by direction of the defendant Martin, representing his wife. No complaint was made to him about his having built upon the wrong property, for several months, according to the statement of Mayo, and for more than a year, according to the testimony of King. The actual eastern 50 feet of lot 10 remained unimproved until the hearing of the case, except that the plaintiff, acting by her sister-in-law, the proprietress of the Lockesley Hall Annex, built a fence along the street or...
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