Gould v. Frazier

• Decision Date: 26 February 1930
• Docket Number: 5330
• Citation: 285 P. 673,48 Idaho 798
• Parties: J. H. GOULD and CATHERINE GOULD, Appellants, v. A. FRAZIER and ISABELL FRAZIER, His Wife, and MARY F. KNOCKE and LOUIS KNOCKE, Her Husband, Respondents
• Court: Idaho Supreme Court

285 P. 673

48 Idaho 798

J. H. GOULD and CATHERINE GOULD, Appellants, v. A. FRAZIER and ISABELL FRAZIER, His Wife, and MARY F. KNOCKE and LOUIS KNOCKE, Her Husband, Respondents

No. 5330

Supreme Court of Idaho

February 26, 1930

REFORMATION OF INSTRUMENTS-DEED-ERRONEOUS DESCRIPTION-MUTUAL MISTAKE-PAROL EVIDENCE-ADMISSIBILITY.

1. In action to quiet title, admitting in evidence defendants' deed conveying part of premises to co-defendants after commencement of action held not prejudicial, where plaintiffs had full opportunity to meet issue involving incorrect description, and objections to such deed were withdrawn.

2. Where deed is ambiguous or contains erroneous description through mutual mistake, parol evidence is admissible to show true intent of parties.

3. In action to quiet title, where description in deed from common grantor to defendants was ambiguous, testimony showing common grantor intended to convey to defendants, and defendants intended to buy, strip of land on which buildings were located, and that such part of land was thought to be covered by description in deed, held sufficient to show mutual mistake warranting reformation of deed so as to quiet title to strip of land involved in defendants.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. Hugh A. Baker, Judge.

Action to reform a deed. Judgment for defendants. Affirmed.

Judgment affirmed. Costs awarded to respondents.

T. M Morris, for Appellants.

It is elementary that the intention of the parties to a contract must be determined, if possible, from the words which they have used and that their language must control in the absence of some ambiguity or uncertainty requiring judicial interpretation. A deed must be presumed to express truly the intention of the parties. (22 C. J. 1125; Camp v Carey, 152 Wash. 480, 278 P. 183.)

When the right to reform an instrument is based solely on a mistake, it is necessary that the mistake be mutual. (23 R. C. L. 327, sec. 20, citing Hearne v. New England Mut. Marine Ins. Co., 20 Wall. (87 U.S.) 488, 22 L.Ed. 395.)

It is necessary that the mistake be mutual, and that both parties understood the contract as the complaint alleges it ought to have been, and as in fact it was except for the mistake. (23 R. C. L. 327, sec. 20, citing Green v. Stone, 54 N.J. Eq. 387, 55 Am. St. 577, 34 A. 1099, note, 117 Am. St. 230.)

S. T. Lowe, for Respondent.

Parol evidence is admissible to show the circumstances under which the deed is made. (Brown v. Bremerton, 69 Wash. 474, 125 P. 785; Maxwell v. Harper, 51 Wash. 351, 98 P. 756; Los Angeles County v. Hannon, 159 Cal. 37, Ann. Cas. 1912B, 1065, 112 P. 878; Cleveland v. Choate, 77 Cal. 73, 18 P. 875.)

Parol evidence is admissible to show that the deed, because of mutual mistake, did not express the real intention of the parties. (Udelavitz v. Ketchen, 33 Idaho 165, 190 P. 1029; Bowers v. Bennett, 30 Idaho 188, 164 P. 93; Exum v. Portneuf-Marsh Valley Irr. Co., 38 Idaho 155, 220 P. 112.)

When the terms in a deed are not clear, subsequent acts of the parties showing their construction before the land became the subject of controversy are to be looked to by the court. (Lowery v. Westheimer, 58 Okla. 560, 160 P. 496; Slavich v. Hamilton, 201 Cal. 299, 257 P. 60.)

GIVENS, C. J. Budge, Lee, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, C. J.

One Charles E. Kimmerling owned the northwest quarter of the northeast quarter, section 35, township 10 south, range 27, east Boise meridian; and also the northeast quarter of the northwest quarter of the same section, the two forty-acre tracts thus adjoining each other. March 5, 1923, he gave a deed to Mrs. Frazier, one of the respondents, containing the following description:

"Beginning at the northeast corner of that certain bridge spanning Raft River, in the northeast quarter of the northwest quarter (NE. 1/4 NW. 1/4) of section thirty-five (35), township ten (10) south, range twenty-seven (27) east Boise Meridian; running thence about 300 yards in a semicircular northeasterly direction to what is known as Heglar Gulch; thence in a westerly direction along said Heglar gulch about 250 yards to Raft River; thence in a southerly direction along said Raft River about 175 yards to the point of beginning, containing two acres more or less, all of the said premises being located in the northeast quarter of the northwest quarter (NE. 1/4 NW. 1/4) of section thirty-five (35), township ten (10) south, range twenty-seven (27) east Boise Meridian."

After the deed had been delivered to the Fraziers the description was changed, evidently by the Fraziers. Upon Kimmerling discovering the change which increased the acreage granted from a little over two acres to a little over nine acres, he had a conference with Frazier, who admitted that all he desired and all that he had purchased was approximately the two acres first conveyed, and a new deed was accordingly prepared containing the above description. Thereafter on March 1, 1926, Kimmerling conveyed by warranty deed to the appellant Catherine Gould the northwest quarter of the northeast quarter of the above-named section. Isabell Frazier in turn on January 7, 1927, conveyed the land described in the deed given by Kimmerling to her to the respondent Mary K. Knocke.

At the time the Fraziers purchased from Kimmerling they had looked over the premises and thereafter placed certain buildings on the plot of ground which they thought they were purchasing and which the court found they intended to purchase, and which evidently both the Fraziers and Knockes thought was wholly within the northeast quarter of the northwest quarter of said section. After the Goulds purchased from Kimmerling it was found that the triangular plot of ground, consisting of the two acres purchased by Frazier, lay partly in both forties. The appellants brought suit to quiet title to the entire forty and the respondents Knocke counterclaimed, seeking to quiet title to their triangular piece of approximately a little more than two acres.

The transfer from the Fraziers to the Knockes was first shown by a deed executed only by Isabell Frazier. A subsequent deed containing the same description was given, signed and executed by both Mr. and Mrs. Frazier on July 30, 1926.

Appellants' first point is that this deed was erroneously admitted in evidence because it was executed after the commencement of the action. Appellants cite no authorities in support of this proposition and no prejudice is shown to have resulted from its admission. The issue was clearly drawn in the pleadings as to the point at issue, namely, whether the original deed from Kimmerling to Mrs. Frazier and in turn the deed from the Fraziers to Mrs. Knocke contained an incorrect description through mutual error or mistake. The appellants had full opportunity to meet this issue and furthermore at the time of the introduction of this deed co...