Gullion v. Plymale

• Court: Colorado Supreme Court
• Writing for the Court: KELLEY; McWILLIAMS, C.J., and HODGES
• Citation: Gullion v. Plymale, 450 P.2d 650, 168 Colo. 245 (Colo. 1969)
• Decision Date: 24 February 1969
• Docket Number: No. 22184,22184
• Parties: Donald Clifford GULLION and Thelma Irene Gullion, Plaintiffs in Error, v. Lawrence A. PLYMALE and Edna L. Plymale and San Luis Valley Federal Savings and Loan Association of Alamosa, Defendants in Error.

Page 650

450 P.2d 650

168 Colo. 245

Donald Clifford GULLION and Thelma Irene Gullion, Plaintiffs in Error, v. Lawrence A. PLYMALE and Edna L. Plymale and San Luis Valley Federal Savings and Loan Association of Alamosa Defendants in Error.

No. 22184.

Supreme Court of Colorado, In Department.

Feb. 24, 1969.

John Ira Green, Alamosa, for plaintiffs in error.

Henry Blickhahn, Alamosa, for defendants in error.

KELLEY, Justice.

The plaintiffs in error, Donald Clifford Gullion and Thelma Irene Gullion (the Gullions), were defendants in the trial court, as was San Luis Valley Federal Savings and Loan Association of Alamosa (the Association). The defendants in error, Lawrence A. Plymale and Edna L. Plymale (the Plymales) were plaintiffs in the trial court. The Association was joined as a party because it held two mortgages on the property which is the subject of this lawsuit.

This cause is before us on writ of error directed to the trial court judgment which reformed the description in a warranty deed conveying a tract of land from the Plymales to the Gullions. The two mortgages held by the Association were reformed in the same manner and to the same extent as the deed.

There is no substantial conflict in the evidence as to what transpired prior to the preparation of the warranty deed by the scrivener who, it should be noted, was selected by the Plymales. There is no disagreement as to the dimensions of the tract intended to be conveyed. Whatever conflict may have existed in the evidence the court resolved in favor of the Plymales. Inasmuch as there was competent evidence to support the findings, we cannot disturb those findings.

The basic disagreement is whether a mistake as to the point of beginning in the description made by the scrivener is a Unilateral mistake chargeable to the grantors, or a Mutual mistake chargeable to both parties. The court held, as a matter of law, that it was a Mutual mistake.

It was agreed by the parties, after an 'on site' inspection of Plymales' property, that Gullions would buy and the Plymales would sell the west 165 feet of a tract 330 264 . The 330 dimension was from east to west, the south line of which was along the south line of Section 9, Township 37 North, Range 10 East, N.M.P.M. The tract in issue was situated in the Southwest Quarter of Section 9 and was described in the conveyance from Plymales to the Gullions as follows:

'* * * commencing at a point on the south section line of said section, which is 1320 feet west of the Southeast corner of said SW 1/4, which is the point of beginning; thence North 264 feet; thence West 165 feet; thence South 264 feet; thence East 165 feet to the place of beginning.'

The 'point of beginning' in the above description was 26.82 feet east of the point of beginning used in the deed conveying the tract to the Plymales out of which the Gullion tract was carved. This came about by reason of the fact that the distance between the quarter corner and the southwest corner of Section 9 was 2666.82 feet, rather than 2640 feet.

The court, in its findings, explained the situation in this fashion:

'* * * Mr. DeSouchet (the scrivener), Mr. and Mrs. Gullion, and Mr. and Mrs. Plymale all believed and assumed that the south line or section line of the Southwest quarter of Section 9, Township 37 North, Range 10 East, was 2,640 feet in length and they also thought and believed that the Southeast corner of the tract being conveyed to Mr. and Mrs. Gullion was exactly 1,320 feet west of the Southeast corner of the Southwest quarter of Section 9. At this time, none of the parties, nor Mr. DeSouchet, knew that the south line of the southwest quarter of Section 9, was actually 2,666.82 feet long, or 26.82 feet in excess of the usual half mile between quarter corners of sections. Likewise, it's quite apparent that Mr. DeSouchet did not know that the east line of the tract to be conveyed to the Gullions was 1,320 feet east of the Southwest quarter of Section 9, or that, in fact, it was 1,346.82 feet west of the Southeast corner of the quarter section. Nor is it apparent that any of the parties knew that the description of the Plymale tract, according to the survey map later made, was actually tied to the Southwest quarter of Section 9, and not the Southeast quarter of the Southwest quarter of Section 9, or what we would normally call the Southwest corner quarter of Section 9.

'The result of this error is that the description of the Gullion tract, according to the deed, places the location of the Gullion tract 26.82 feet east of where it was intended to be. This error in description was carried through the deed to the Gullions into the deed of trust...