Kofoed v. Bray

• Citation: 220 P. 532,69 Mont. 78
• Decision Date: 22 November 1923
• Docket Number: 5311.
• Parties: KOFOED v. BRAY.
• Court: United States State Supreme Court of Montana

220 P. 532

69 Mont. 78

KOFOED v. BRAY.

No. 5311.

Supreme Court of Montana

November 22, 1923

Appeal from District Court, Granite County; George B. Winston Judge.

Suit for specific performance by Hans Kofoed against John Bray. From the decree rendered, plaintiff appeals. Affirmed.

Wingfield L. Brown and R. Lewis Brown, both of Philipsburg, for appellant.

W. E Moore, of Philipsburg, for respondent.

CALLAWAY C.J.

This action is one for the specific performance of a contract for the sale of land and water rights. In the beginning the defendant and wife gave to plaintiff a writing which reads this way:

"Hall Montana, October 23, 1909. Received from Hans A. Kofoed One Hundred & Fifty Dollars ($150.00) in part payment for ranch of 200 acres, on Section 31, Township 10, Range 13 W., water rights of located 1869 & 1871. If not as I say and represent the money to be returned. [ Signed] Josephine Bray. John Bray."

Three days later the parties met at a law office in Philipsburg. There Josephine Bray executed a warranty deed purporting to convey to plaintiff the land mentioned in the writing of October 23d, and "also fifty inches of waters of Willow creek, miner's measure, appropriated May 15, 1869, and seventy-five inches of the waters of said Willow creek, miner's inches, appropriated May 15, 1871, as described in a suit of A. A. McDonald v. Ed Lannen et al."

At the same time Josephine Bray and plaintiff agreed in writing that the deed should be placed in escrow to be delivered to plaintiff when he should complete the payments provided for in the agreement. The reason defendant did not sign the escrow agreement and deed was that he then disclaimed any interest in the lands and water rights thereby affected, declaring the same to be the separate property of his wife. Before the transaction was completed on that day, October 26th, the deed was read in the presence of Mr. and Mrs. Bray and the plaintiff.

Plaintiff objected to the amount of water stated in the deed, in response to which he testified defendant said:

"That was all the water he was going to allow me. Because he said he sold the land too cheap, anyhow. And if you don't want to take the 50 inches of 1869 water, we will give you the money back, he said."

The following testimony given by plaintiff is illuminative:

"Q. You say Mr. Bray said that while you were there? A. Yes, sir. Q. Did you then know how much water was in the deed--how much water it called for? A. Yes, sir. Q. From your recollection now, how much water did the deed call for? A. The deed called for 125 inches. Q. So now you say that Mr. Bray told you at that time that there was 25 inches of the water he wasn't going to give you? A. Yes, sir. Q. Did Mrs. Bray say anything about it? A. Not at that time; no. She said Mr. Bray was 'doing the business for me. I don't know anything about it.' * * * Q. So you accepted the deed? A. With a protest; yes. Q. But you did know that it called for only 50 inches of the '69 right? A. Sure. Q. After that what did you do, if at any time, before the property was paid for about having that deed corrected? A. Why, I asked Mrs. Bray at different times to correct, and I also spoke to Mr. Bray about it."

By the agreement Mrs. Bray acknowledged the receipt of the first payment, $500. Other payments were to be made annually, the final one falling due in 1916. The deed and accompanying agreement were placed in escrow in the Drummond State Bank by Mrs. Bray. Plaintiff did not see the deed again until he finished paying for the land, although he could have seen it had he wished to do so. He said Mrs. Bray said she would "fix it up all right," and he presumed "that probably she did." Having performed all of the terms of the agreement of purchase, plaintiff received the deed from the bank on or about January 1, 1917. Mrs. Bray died in 1918.

The court found that on or about March 1, 1910, with the consent of the Brays, plaintiff entered into the possession of the premises and the 125 inches of water mentioned in the deed, and ever since he has been in the quiet and peaceable possession of the same.

As a matter of fact, when the deed and escrow agreement were made, the defendant was the owner of 160 acres and his wife of 40 acres of the 200 agreed to be conveyed, and defendant was the owner of the right to the use of 75 inches of the waters of Willow creek as of date May 15, 1869, and 75 inches as of date May 15, 1871. When negotiations began between plaintiff and the Brays, all the water was appurtenant to the land afterwards agreed to be conveyed. Whether defendant knew the title to the land in question was in his name when the deed was made is not clear from the record but it may be inferred fairly that he did know it. However that may be, he admitted in his answer his obligation to convey the land to plaintiff, but asserted his contention that plaintiff is entitled to 100 inches of water only. Defendant testified: "I gave my wife permission to sell the land and a hundred inches of water."

As to the use of the water, the fact is that with the knowledge of all concerned at all times after March 1, 1910, plaintiff used 125 inches of water, 50 inches of the 1869 right and 75 of the 1871 right, while defendant retained 25 inches of the 1869 right which he used upon other land belonging to himself, known as the Gird ranch, except during one year when he permitted plaintiff to use the same, and that under lease, so defendant says.

On January 31, 1921, plaintiff borrowed money of defendant. To secure its payment he executed to defendant a mortgage conveying the 200 acres of land together with the water mentioned in the deed. About the month of July, 1921, plaintiff discovered for the first time that title to the water rights and to all of the land (except 40 acres which had been in the name of Josephine Bray) was in the defendant. Plaintiff immediately demanded that defendant convey to him all the lands and water rights which he claimed were comprehended by the writing dated October 23, 1909. Defendant having refused to comply with the demand, plaintiff brought this suit.

By its decree the court ordered defendant to execute a deed conveying to plaintiff the 160 acres of land which Josephine Bray had attempted to convey, but which actually was in the name of her husband, and also the right to 125 inches of the waters of Willow creek, 50 inches as of May 15, 1869, and 75 inches as of May 15, 1871. The court found that--

"Plaintiff had been guilty of laches in bringing this action and in asserting his rights, if any he had, to the said 25 inches of the waters of said Willow creek as of date May 15, 1869, * * * and has, for more than 12 years, acquiesced in the use by the defendant of the 25 inches of the waters of said Willow creek as of date May 15, 1869."

Plaintiff has appealed from the judgment, complaining because the court did not direct defendant to convey 75 inches instead of 50 inches as of May 15, 1869.

We think the court was fully justified in its findings of fact, conclusions of law, and decree.

1. In the first place, the writing of October 23d, standing alone, is not sufficient to warrant the remedy of specific performance. Among other deficiencies it is indefinite as to the terms of sale. It does not state a consideration to be paid, nor the time and conditions of performance. The concluding sentence, "If not as I say and represent the money to be returned," certainly does not clarify the situation. We must assume that the sentence was placed in the agreement for some purpose, but discussion as to what the purpose was will not be useful here. "An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable" cannot be specifically enforced. Section 8720, subd. 6, R. C. 1921.

It is plain, too, that the agreement lacks mutuality. Generally speaking, when either of the parties to an obligation is entitled to a specific performance thereof the other party is entitled thereto. Section 8715, R. C. 1921. By the provisions of section 8716, "neither party to any...