Ives v. Hanson

• Decision Date: 12 November 1954
• Docket Number: No. 7455,7455
• Citation: 66 N.W.2d 802
• Parties: Orton IVES, Plaintiff and Appellant, v. Willard HANSON and Esther Hanson, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 802

66 N.W.2d 802

Orton IVES, Plaintiff and Appellant, v. Willard HANSON and Esther Hanson, Defendants and Respondents.

No. 7455.

Supreme Court of North Dakota.

Nov. 12, 1954.

Syllabus by the Court.

1. A fee-simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended. Sec. 47-1013, NDRC 1943.

2. A grant is to be interpreted in favor of the grantee. Sec. 47-0913, NDRC 1943.

3. Parol evidence of an alleged mutual mistake as a basis for the modification of a written instrument must be clear, satisfactory, specific and convincing, and a court of equity will not grant the high remedy of reformation even upon a mere preponderance of the evidence, but only upon the certainty of error.

4. It is held for reasons stated in the opinion, that the parol evidence offered by the plaintiff, particularly in view of the fact that death has sealed the lips of one of the parties to the transaction, and that of the attorney who prepared the deed involved, is not so clear, satisfactory, specific and convincing that there was a mutual mistake as to warrant reformation of the deed.

5. The weight and credibility of the testimony of an interested party, though uncontradicted, is for the triers of the facts, whether court or jury, who are not bound thereby.

Swendseid & Bekken, Stanley, for plaintiff and appellant.

H. Morris Borstad, Tioga, and E. C. Rudolph, Ray, for defendants and respondents.

JOHNSON, Judge.

This is an equitable action for the reformation of a warranty deed.

On November 29, 1946, the plaintiff, Orton Ives, made, executed, and delivered a warranty deed covering the East Half of the Southwest Quarter (E 1/2 SW 1/4) and Lots 6 and 7, Section 6, Township 157 North, Range 94 to Harold Hanson. In the deed his son, Willard Hanson, was named as grantee. There are no reservations in the deed.

The plaintiff pleads his right of reformation on an alleged oral agreement wherein and whereby he had agreed to sell to Harold Hanson the surface of the above described property and the undivided fifty per cent (50%) interest in all the minerals, oil and gas in and under and produced therefrom; that at the time of the execution and delivery of the warranty deed mentioned, the plaintiff and Harold Hanson were informed and believed that Mountrail County owned fifty per cent (50%) of the oil, gas and other minerals in and under said land; that by mutual mistake of both law and fact, the deed made, executed and delivered by the plaintiff contained no reservation whatsoever and erroneously conveyed said land in fee simple; and the plaintiff requests that the deed be reformed to convey the surface rights to the land covered by the warranty deed and that fifty per cent (50%) of the oil, gas and other minerals be reserved to him. Willard Hanson is a nephew and Esther Hanson, his mother, is a sister of the plaintiff. They answered denying that there was a mutual mistake on the part of the plaintiff and Harold Hanson with reference to reserving in the plaintiff certain oil and gas in the lands described in the plaintiff's complaint, and alleged that the deed of conveyance was intended to, and did express the actual intent of the parties; that nearly six years have elapsed since the execution and delivery of the deed, and that the plaintiff did not assert any mistake until the commencement of this action; that since the execution and delivery of the deed, Harold Hanson has died and that his testimony is no longer available; that by reason of the plaintiff's laches and negligence the defendants have been prejudiced because of the difficulty of securing certain and exact evidence as to conversations leading up to the deed.

This action was tried to the court and resulted in a decision in favor of the defendants. The plaintiff appealed and demanded a trial de novo.

The real object of this action is to determine whether or not the plaintiff, as grantor, or the defendant, Willard Hanson, as grantee, in the warranty deed mentioned, is the owner of fifty per cent (50%) of the minerals, including oil and gas, in the real property covered by the deed, which by the statute, Section 11-2704 of the NDRC 1943, was reserved to the county.

The only persons having actual knowledge of the alleged oral agreement were the plaintiff himself and Harold Hanson. It is upon the testimony of the plaintiff alone that the action to reform the deed is based.

It appears from the evidence that when the parties reached an agreement of sale and purchase of the land described in the warranty deed to Willard Hanson, they decided to drive to the city of Stanley and consult attorney F. F. Wyckoff. The plaintiff testifies that the alleged oral agreement was explained to Attorney Wyckoff and that he informed the parties that under the provisions of Chapter 136 of the Session Laws of 1941, the county automatically retained fifty per cent (50%) of all the oil, gas and other minerals in tax title land acquired by the county. The plaintiff, Orton Ives, had purchased the land from Mountrail County under a contract for deed dated December 22, 1942. Mountrail County had acquired title to the property by tax deed executed and delivered to it on the 1st day of October, 1940. On February 17, 1945, Mountrail County executed and delivered a county deed from County to purchaser, Orton Ives, covering and describing the land involved in the transaction between the plaintiff and Harold Hanson. This deed contains no reservations whatsoever.

The plaintiff asserts that he had agreed to sell the surface and fifty per cent (50%) of the minerals, including oil and gas, to Harold Hanson; that inasmuch as the county owned fifty per cent (50%) of the minerals including oil and gas, if the plaintiff was to comply with the alleged oral agreement made to Harold Hanson, he could not retain any of the oil, gas or other minerals. It is stated that Attorney Wyckoff advised that any assertion of the reservation of the minerals in and to the plaintiff would merely serve to pass less than fifty per cent (50%) of the minerals, which would be contrary to the terms of the alleged oral agreement; that after some discussion between Orton Ives and Harold Hanson concerning the status of the minerals, the plaintiff agreed to abide by the oral contract that he made with Harold Hanson and that the warranty deed to Willard Hanson was drawn without any reservations.

Mr. Wyckoff died in October 1948. At the time of the trial of this action, the only party who could shed any light on the consummation of the alleged oral agreement was the plaintiff himself, as both Harold Hanson and F. F. Wyckoff, the attorney who drew the deed had died.

On March 21, 1951, this court decided the cases of Kershaw v. Burleigh County, 77 N.D. 932, 47 N.W.2d 132, and Kopplin v. Burleigh County, 77 N.D. 942, 47 N.W.2d 137. These cases, following the case of Adams County v. Smith and Dakota Collieries Company, 74 N.D. 621, 23 N.W.2d 873, determined that the counties of the state no longer had any interest in the fifty per cent (50%) of the minerals as provided by Chapter 136 of the 1941 Session Laws, now Section 11-2704 of the NDRC 1943; that this statute had been superseded by Chapter 286 of the 1941 Session Laws, now Section 57-2816 of the NDRC 1943, passed at the same session of the legislature as Chapter 136.

At the time that the plaintiff and Harold Hanson consulted Attorney Wyckoff, and upon the advice given, they were both laboring under the mistaken belief as to the law regarding the ownership of minerals by a county.

Shortly after the public announcement of these decisions and on or about June 1, 1951, the plaintiff contacted the defendant, Willard Hanson, and told him that fifty per cent (50%) of the minerals under the land covered by the warranty deed dated November 29, 1946, belonged to him and stated: 'Well the boy made the statement that he knew about it. He knew it was so.' This statement, however, is inconsistent and in conflict with the testimony of both Willard Hanson and his mother, Esther Hanson. They both stated that they knew nothing about the alleged agreement between the plaintiff and Harold Hanson; that the plaintiff had never mentioned this matter prior to June 1951 to either of the defendants. Esther Hanson also testified that her husband had never mentioned anything with reference to the reservation of oil and gas in the land deeded to Willard Hanson and that she had never heard of it until the plaintiff talked to her about it for the first time along about June 1951.

It is significant to note that although the plaintiff asserts positively the terms of the alleged oral agreement leading up to the execution and delivery of the warranty deed to Willard Hanson, at one point he testifies as follows:

'And the agreement was between Hanson, Harold Hanson, and I think I was supposed to have half of that mineral rights if the county couldn't claim them. And we went to Stanley with that understanding that I was supposed to have that if the county didn't reserve it. And we went to the State's Attorney. He said the county did hold that half of that. And that's, that is the way it was with the agreement, I understand, was the way it was supposed to be.'

At another point in the testimony of the plaintiff he asserts, referring to Hanson:

'A. He said, 'I don't care about that.'

'Q. He didn't care about what? A. About the fifty per cent of the mineral rights. 'I don't care about that', he said.'

This testimony of the plaintiff is in conflict with the alleged oral agreement that he was to convey fifty per cent (50%) of the minerals and the surface. It would be logical to suppose that if Harold Hanson did not care about the minerals as testified to by the plaintiff, that the plaintiff would then have insisted upon fifty per cent (50%) reservation thereof. This he did not do.

The deed involved in this action grants a fee-simple...