Brevig v. Webster

• Decision Date: 15 February 1979
• Docket Number: No. 77-660,77-660
• Citation: 277 N.W.2d 321,88 Wis.2d 165
• Parties: Melford BREVIG and Marjorie Brevig, Plaintiffs, v. George WEBSTER and Barbara Webster, his wife, Defendants-Appellants, Donald Mattie, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 321

277 N.W.2d 321

88 Wis.2d 165

Melford BREVIG and Marjorie Brevig, Plaintiffs, v. George WEBSTER and Barbara Webster, his wife, Defendants-Appellants Donald Mattie, Defendant-Respondent.

No. 77-660.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 10, 1978.

Opinion Released Feb. 15, 1979.

Opinion Filed Feb. 15, 1979.

[88 Wis.2d 167] Moen, Sheehan, Meyer & Henke, Ltd., La Crosse, with Michael S. Moen, La Crosse, of counsel, for defendants-appellants.

Steele, Klos & Flynn, Chartered, La Crosse, with G. Jeffrey George, La Crosse, of counsel, for defendant-respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

BABLITCH, Judge.

This is an appeal from a judgment of the circuit court for La Crosse County in an action involving a dispute over the ownership of three parcels of land near the south shore of Lake Neshonoc.

Appellants George and Barbara Webster claim title under deeds executed in 1971. Respondent Donald Mattie claims title under oral land contracts preceding the Webster deeds and under a 1974 deed allegedly executed pursuant to those contracts.

The facts are complex, though not in serious dispute. The plaintiffs Melford and Marjorie Brevig were owners of a farm in La Crosse County on which the three disputed parcels were located. In or about 1953, Mattie received the Brevigs' permission to camp on a part of this land. In 1955, he approached Melford Brevig to inquire whether he could purchase a lot in the area where he had been camping. Mr. Brevig told Mattie to choose a specific lot, and to arrange for a survey. Mattie cleared brush and stumps from an area approximately 98 feet by 204 feet. In or about 1956, one or both parties hired a surveyor to provide a legal description for the lot. At trial this lot was designated as "parcel one," and will be referred to as such in the balance of this opinion. ¹

No written contract was ever executed by the parties. On January 2, 1960, Mattie signed a promissory note in the amount of $1,000, payable to the Brevigs with interest at five percent per annum, and due on January 2, 1966. Both Mattie and the Brevigs In 1965, Melford Brevig agreed to convey a small lot to the north of, and contiguous to parcel one at no additional cost if Mattie would fill and maintain a ditch on the parcel so as to prevent runoff onto Brevigs' adjacent fields. This lot is referred to as "parcel two," or the "ditch parcel." Mattie subsequently filled and sodded this parcel and has maintained it continuously since 1965.

testified at trial that this note represented the purchase price of parcel one. Mattie made payments on the note from time to time thereafter, as he could afford it. The final payment was not made until December 31, 1970. The Brevigs testified at trial that the payment schedule was flexible, and that they did not object to the late payments.

In 1959, the Brevigs conveyed by warranty deed a lot north of and contiguous to the ditch parcel to Eugene Huffman, and simultaneously granted Huffman an oral option to purchase a slightly smaller parcel north of and contiguous to the "Huffman parcel." The parcel on which the option was given is referred to as "parcel three." In 1962 Mattie purchased the Huffman parcel for an undisclosed price, and obtained a warranty deed which was subsequently recorded. There is no dispute as to his ownership of that parcel. He testified that as a part of that transaction he also acquired the oral option to purchase parcel three from the Brevigs at a purchase price of $500. Melford Brevig corroborated this testimony. Mattie also testified that he would not have purchased the Huffman parcel without a guarantee that he could purchase parcel three thereafter. No time limit was placed on the exercise of this option. No part of the agreed-upon price had been paid at the time of trial.

Subsequent to each oral agreement, Mattie made certain improvements on each of the four parcels. He maintained a mobile home on parcel one, was instrumental in obtaining an electrical highwire and telephone service to the area, drove a well, erected a pole barn, and established and maintained a cinder road into parcel one. He also cultivated and seeded parcels two and three, kept parcel three mowed and "looking like a yard," and erected a flag pole and planted flowers on it.

In 1965, the Brevigs negotiated the sale of their farm to one Rhyme. Though this deal later fell through, during the course of the negotiations the Brevigs hired a surveyor to identify the four parcels. A copy of the survey map prepared under Melford Brevig's direction was admitted into evidence. The lots referred to in this action as parcel one and the Huffman parcel bear the surveyor's handwritten inscription, "D. Mattie." The parcels referred to in this action as parcels two and three are inscribed on the survey map as "# 2" and "# 3," respectively.

In 1967 the Brevigs sold a small lake lot to defendant George Webster. In 1969, Webster expressed his interest in buying the entire Brevig farm. The Brevigs and Webster had periodic negotiations concerning the proposed sale from 1969 through the spring of 1971. The Brevigs testified that during the course of these negotiations they showed Webster a copy of the 1965 survey and explained repeatedly that the parcels of land discussed above were being purchased by Mattie and would have to be excepted from the sale to Webster. Webster admitted seeing the survey and being told on one occasion that the Mattie parcels must be excepted, but testified that he insisted they be conveyed to him, and that the Brevigs did not mention the exclusion as a condition of the sale during the later stages of the negotiations. The Brevigs denied that Webster insisted on the transfer of these parcels as a condition of sale.

On April 24, 1971, four months after Mattie completed payments on parcels one and two, the Brevigs and Webster entered into a written real estate and personal property sales agreement. On June 8, 1971, the Brevigs executed a warranty deed to Webster, and on June 21, 1971, they executed a quit claim deed to substantially the same property. ² After the sale to Webster, he made no attempt to prevent Mattie from tending or otherwise exercising a proprietary interest in any of the four parcels. Nor did he make any overt claim of ownership to these parcels. In early 1972, Mattie approached Webster to explore the possibility of negotiating a deal to straighten the road running along the eastern portion of the four parcels. ³ Accordingly, Webster contacted a surveyor to stake out a new road. The staking out was accomplished by the cooperative efforts of Webster, Mattie, and the surveyor in or about April of 1972. As a result of the survey, the eastern boundaries of the four parcels were extended by approximately six feet into Webster's property. Mattie testified that at no time did Webster say anything indicating a belief that Webster owned the parcels. Mattie also testified that he had told Webster he was "a hell of a swell fella" to give Mattie six feet of land. The surveyor testified that Webster told him the purpose of the survey was to straighten out "Mattie's line" and to make a better road.

² All three documents failed to except parcels one, two, three, and the Huffman parcel, though they did except a lot the Brevigs intended to retain as their home. The purchase contract was prepared by Webster's attorney. The deeds were prepared through the joint efforts of the parties' respective attorneys over a period of several days. The Brevigs testified that they instructed their attorney to exclude all four "Mattie parcels," as well as their homestead, and that they assumed he had done so at the time they executed the sales contract and the deeds. Webster testified that he assumed[88 Wis.2d 171] they had withdrawn their insistence that the parcels be excepted when he received deeds which failed to exclude them.

Sometime in 1974, Mattie contracted to sell the property to a third party. ⁴ During the course of the buyer's title search, Mattie discovered that the parcels had never been "registered" in his name as he believed had been done at the time of the Brevig-Webster sale. Mattie contacted Melford Brevig, and thereafter the Brevigs executed a warranty deed dated September 4, 1974, conveying all four parcels of land to Mattie. Mattie's attorney contacted Webster, who refused to execute a quit claim deed of these parcels to Mattie.

The Brevigs commenced this action in January, 1976, seeking reformation of the 1971 Webster deeds to exclude the parcels claimed by Mattie. The Websters cross-claimed to quiet title of the entire land in themselves. Mattie cross-claimed for reformation. The Brevigs' complaint was dismissed for reasons immaterial to the issues on appeal and the matter was tried on the cross-claims. The Websters appeal from a judgment confirming Mattie's title in parcels one and two and granting him 30 days from the entry of judgment to pay the Brevigs the $500 purchase price on parcel three.

The issues are:

I. Whether the trial court erred in admitting parol evidence of the oral contracts between Mattie and the Brevigs.

II. Whether the oral contracts are enforceable under the equitable exceptions to the statute of frauds.

I. PAROL EVIDENCE

Webster made numerous objections during the course of the trial to testimony concerning the oral agreements between In Bunbury, 41 Wis.2d 522, 529, 164 N.W.2d 473, 475-476, the court noted that "the parol evidence rule . . . implies the existence of a written contract expressing the intent of the parties without any question of fraud or mistake, and to which the parties assent as a complete integration of their understanding." The court quoted with approval 3 Corbin, Contracts § 573, at 357 (1960), to the effect that in determining whether a contract has been entered into " 'there is no "parol evidence rule" to be applied.' " On this issue, " 'no relevant evidence, whether...