Chadwick v. Giberson

• Decision Date: 19 November 1980
• Docket Number: No. 80-7,80-7
• Citation: 190 Mont. 88,618 P.2d 1213,37 St.Rep. 1723
• Parties: Elizabeth Fuller CHADWICK, Plaintiff and Respondent, v. Charles Howard GIBERSON and Lura B. Giberson, husband and wife, Defendants and Appellants.
• Court: Montana Supreme Court

Page 1213

618 P.2d 1213

190 Mont. 88

Elizabeth Fuller CHADWICK, Plaintiff and Respondent, v. Charles Howard GIBERSON and Lura B. Giberson, husband and wife, Defendants and Appellants.

No. 80-7.

Supreme Court of Montana.

Submitted on Briefs Aug. 13, 1980.

Decided Oct. 8, 1980.

Rehearing Denied Nov. 19, 1980.

Murphy, Robinson, Heckathorn & Phillips, Warden, Christiansen & Johnson, Kalispell, for defendants and appellants.

Robert Skelton, Missoula, for plaintiff and respondent.

DALY, Justice.

This appeal arises from a judgment entered by the Honorable Robert C. Sykes, Flathead County District Court, granting plaintiff specific performance and ordering defendants to convey by contract for deed a parcel of land located in Flathead County.

Defendants Charles and Lura Belle Giberson listed for sale with Douglas Johns Real Estate of Kalispell, Montana, four forty-acre tracts in Flathead County (Parcels A, B, C, and D). In August 1976, plaintiff Elizabeth Chadwick viewed the property in the presence of F. E. McHenry, an agent of Douglas Johns Real Estate. In viewing the property, the two parties discussed access to the various parcels. In particular, McHenry testified that he informed Chadwick that there would be a need to provide access to Parcel B. At the time of the showing, however, a survey showing the exact location and dimensions of any proposed access was not available. As a result of the August viewing, Chadwick submitted an offer to purchase all four tracts. The Gibersons counteroffered, but plaintiff was unable to accept, and the earnest money paid was returned.

On September 25, 1976, Chadwick made an offer to purchase only Parcel A. An earnest money receipt and agreement to sell and purchase was prepared by McHenry on that date, which was signed by plaintiff and then sent to the Gibersons for their signatures. Earnest money in the amount of $1,000 was paid by Chadwick. Defendants signed the agreement and returned it to defendants' other real estate agent, Douglas Johns, who on October 1, 1976, added the special provisions: "Seller will provide legal access from the south to this property."

On October 18, 1976, Mr. Johns mailed to Chadwick her copy of the earnest money receipt and enclosed a copy of the preliminary title report issued on October 5, 1976. The report disclosed that the only easement of record at the time the parties signed the September 25 agreement was one recorded on July 26, 1967, which reserved for defendants' predecessor, Vernon and Marva Schmid, a right of way for ingress and egress across Parcel A (the Schmid easement).

Subsequent to receiving the title insurance report, however, Chadwick was forwarded a copy of the certificate of survey for Parcel A. The certificate showed a sixty-foot roadway easement along an existing logging road and running north-south just west of the eastern boundary of Parcel A. It narrowed to thirty feet near its northern terminal and provided access to Parcel B. A thirty-foot roadway easement was also shown across the southeast corner of Parcel A into Parcel B.

Chadwick objected to the easements shown on the survey-particularly to the length and location of the north-south easement to Parcel B. As a result of this objection, a revised certificate of survey was prepared eliminating the long north-south easement but increasing the width of the short easement across the southeast corner of Parcel A from thirty to sixty feet.

On December 15, 1976, Chadwick received a proposed contract for deed for the purchase and sale of Parcel A. The contract not only reserved the Schmid easement, but also contained a reservation unto defendants, their heirs and assigns, of the sixty-foot roadway and utility easement across the southeast corner of the parcel. Chadwick would not sign the contract or tender the balance of the downpayment in that she continued to object to the sixty-foot easement which was not provided for in the September 25, 1976, earnest money receipt and agreement to sell and purchase.

Chadwick brought suit on February 14, 1977, for specific performance of the September 25 agreement to sell and purchase, alleging that at the time the parties entered into the agreement, the only easement of record was the Schmid easement. She also filed on this date a lis pendens in regard to Parcel A, thereby giving notice of her claim to said parcel.

Defendants answered and counterclaimed, alleging that plaintiff was fully advised of the sixty-foot easement and that it would be reserved to provide access to an adjoining parcel of land.

On February 15, 1977, defendants filed with the Flathead County clerk and recorder a notice of purchasers' interest wherein notice was given that defendants granted to Vester and Theila Banta Parcel B, as well as an interest in the sixty-foot roadway and utility easement through Parcel A. The contract for deed between defendants and the Bantas was dated January 14, 1977.

Defendants forwarded to plaintiff on March 2, 1977, a notice demanding that plaintiff execute the contract of sale or forfeit the earnest money previously paid. Plaintiff refused to perform or offer to perform as demanded in the notice.

Trial on plaintiff's claim was held on August 7, 1979, after which the District Court found for plaintiff and granted specific performance. Defendants have appealed.

The first issue raised on appeal is whether the District Court erred in concluding there was an enforceable agreement between the parties.

From the filing of plaintiff's complaint and defendants' answer and counterclaim to eventual trial, both parties have contended that the September 25, 1976 agreement to sell and purchase was valid and enforceable as against the other. The issue in the proceeding was not the validity of the contract, but whether it embraced certain alleged easements.

Defendants now argue on appeal that although the parties executed the same agreement, they never agreed on the same terms concerning the reservation of an access road across Parcel A; thus,...