Davis v. Kleindienst

• Decision Date: 20 May 1946
• Docket Number: 4870
• Parties: DAVIS et al. v. KLEINDIENST
• Court: Arizona Supreme Court

169 P.2d 78

64 Ariz. 251

DAVIS et al. v. KLEINDIENST

No. 4870

Supreme Court of Arizona

May 20, 1946

Appeal from Superior Court, Navajo County; W. E. Ferguson, Judge.

See also, 165 P.2d 995.

Judgment affirmed.

P. H Brooks, of Winslow, for appellants.

C. D McCauley, of Winslow, and Moeur & Moeur and Charles N Walters, all of Phoenix, for appellee.

Morgan Judge. Stanford, C. J., and LaPrade, J., concurring.

OPINION

Morgan, Judge.

Appellee, as plaintiff, instituted this action against appellants, defendants in the court below, for reformation of deed and to quiet title to a tract of ground in the city of Winslow. Defendants resisted the action on the ground that they were subsequent purchasers without notice and for a valuable consideration. They denied the allegations pertaining to plaintiff's right to quiet title. Defendant Edna Davis is a party by reason of her marital relationship to her husband. The parties will be designated as plaintiff and defendant. The facts proven at the trial may be stated as follows:

During the year 1924 plaintiff purchased from one John K. and Frances E. Kelley, through their attorney in fact John L. Sweeney, a tract of ground containing approximately 15 acres. The deed contained the following description: "Beginning at the fence at the Northwest corner of the Bazell Motor Company Camp Grounds, Thence in a due Northerly direction to the North Line of the John K. Kelley property, thence Westerly along the John K. Kelley property line to the J. E. Kleindienst property line, thence in a South and slightly Easterly direction along the J. E. Kleindienst property line to a point just West of point of beginning, thence due East to point of beginning, being unplatted acreage and a portion of the South East Quarter of Section 24, Township 19 North of Range 15 East, G&SRM, Winslow, Navajo County, Arizona."

Through error, the first course or eastern boundary was described as running "in a due northerly direction". Actually this line should have been described as running north 27 degrees east approximately. The deed, on its face, contained only 5.7 acres of the westerly portion of the tract which plaintiff was purchasing. The error resulted from the fact that while the platted portion of Winslow and additions thereto, other than the Mahoney addition, disclose the streets as running north 27 degrees east, they are generally referred to as northerly and southerly. At the time of the purchase, a survey was made and an iron stake was placed in the ground at the northeast corner of the tract, establishing the eastern line as running from the point of beginning north 27 degrees east to the north line of the John K. Kelley property, and including approximately 15 acres.

No improvements were placed on the property nor was it enclosed. Taxes on the 15 acres were assessed to plaintiff and paid by him from and after the year 1925. The description in the assessor's office merely read "Unpl Hicks-W. Bazell C. G. 15 A," and later was carried as "15 A." In 1942, plaintiff hired an engineer who platted and subdivided the acreage. The iron pipe at the northeast corner was found and a cement block or marker placed at such corner. The plat so prepared was filed and accepted by the city council on June 2, 1942. It was not filed with the county recorder until February 24, 1944. It apparently was submitted to the county assessor who designated the same as platted land of the plaintiff's addition on the assessor's map. The time of this submission is not shown. At the date of the trial the cement block had been removed.

By quitclaim deed dated November 13, 1943, Frances E. Kelley quitclaimed to defendant "For and in consideration of the sum of One Dollar * * * All the unplatted acreage in the south-east quarter of section twenty-four (24), township Nineteen (19) North of Range Fifteen (15) East, Gila and Salt River Meredian, Winslow, Navajo County, Arizona, * * *." By warranty deed April 6, 1945, the same grantor conveyed to defendant Ralph Davis by metes and bounds, for a recited consideration as follows: "For and in consideration of other valuable consideration and One Thousand Dollars" approximately 22 acres. This covered and included the 9.1 acres in controversy. The evidence also disclosed that the Kelleys, the original grantors, from and after 1924 continued to pay taxes on the land in controversy.

Shortly after defendant received the quitclaim deed above mentioned, the United States Government instituted a condemnation action in the Federal court for the purpose of procuring title to the land for a housing project. This action covered the disputed area as well as other lands of the parties in the area involved. The government tendered the price in court. To obtain release of the money being held, defendant on December 24, 1944, apparently at the request of plaintiff, wrote the following letter to Mr. Carson, the government attorney:

"Any protest that I have previously made and which interferes with the settlement between J. E. Kleindienst and the United States Government concerning project No. 2301 is hereby withdrawn.

"The property line as set forth on the map prepared by Yost and Gardner is acceptable by me and I agree that I have no claim to the property designated within the boundaries on the plat recorded in the County Assessors Office in Holbrook, Arizona."

Defendant, however, refused to sign a disclaimer or quitclaim for the described area, which was thereafter prepared by the government.

Before purchasing the land from Mrs. Kelley in 1943, defendant examined the records and plat in the assessor's office. His testimony is that from these records and from actual observation he had no notice of plaintiff's claim to the area in question.

It appears conclusively from the evidence that a mistake was made in drawing up the original warranty deed from the Kelleys to the plaintiff, and that it should have included the ground claimed by plaintiff in his complaint. It also appears that on or prior to December 24, 1944, the Yost and Gardner map mentioned in the letter of Ralph Davis to Mr. Carson described the eastern line of the tract as claimed by plaintiff. It is also shown by the evidence that about the time (probably shortly after) Mr. Davis had procured the quitclaim deed, he was fully advised by Mr. Sweeney as to the ground which plaintiff had purchased in 1924.

The case was tried to the court without a jury. It found the issues in favor of plaintiff and directed reformation of the deed as prayed by plaintiff. From the judgment entered, defendant has brought this appeal.

Defendant supports his various assignments of error by the following propositions of law which for the sake of brevity we paraphrase:

1. Plaintiff's deed could not be corrected by including additional land which defendant had purchased for value and without knowledge of mistake;

2. Defendant was not a party to the original deed. His interest attached to the land long after the mistake was made and the deed recorded. Therefore, parol or extrinsic evidence is not admissible to change the description contained in the recorded instrument;

3. Plaintiff wholly failed to prove open and notorious possession for the statutory period.

The fourth assignment of error, which we think fails to raise questions that we can properly consider, will be referred to later.

Plaintiff concedes that defendant's first proposition correctly states the law, but takes the position that under the facts, the court properly found that defendant was not a purchaser for value and without knowledge of the mistake in the prior deed under which plaintiff claims the property.

Obviously, the question as to whether defendant was an innocent purchaser for value without notice was, under the issues, one of fact for the trial court. If there is any substantial evidence which would support the trial court's finding that defendant was not an innocent purchaser for value and without notice, the judgment would have to be sustained. Stewart v. Damron, Ariz., 160 P.2d 321; Atchison, T. P. & S. F. R. Co. v. Hicks, Ariz., 165 P.2d 167.

It appears to be the rule that to warrant the reformation of an instrument, mere preponderance of the evidence is insufficient. The mistake urged as a ground for reformation must be established by evidence that is clear, convincing and satisfactory. Gingery v. Romeris, 24 Ariz. 267, 208 P. 1024; Northwestern Nat. Ins. Co. v. Chambers, 24 Ariz. 86, 206 P. 1081. Inasmuch as both plaintiff and the attorney in fact for the sellers, the Kelleys, testified that plaintiff's original purchase covered the ground in controversy, and that the description in the deed was a mistake, and this was uncontradicted, there can be no question that a full compliance was made with the rule. The evidence was clear, convincing and satisfactory.

The controversial question in the case was whether defendant was an innocent purchaser for value and without notice. This question is to be determined under the ordinary rule -- by a preponderance of the testimony. 66 C.J. 1201, sec. 1065, Vendor and Purchaser. The evidence as to this need not be clear, convincing and satisfactory. If, therefore, there is any reasonable evidence to justify the court in finding that the defendant purchased with notice, or was not a purchaser for value, then the judgment must be sustained.

The testimony adduced by both of the parties, except as to matters upon which as we have already stated there seems to be no controversy, was somewhat meagre and left many matters in doubt which might have been shown by an examination of the witnesses. Defendant argues at considerable length that the evidence adduced on the part of the plaintiff was wholly insufficient to justify the...