Kufer v. Carson, 2--56944

• Citation: 230 N.W.2d 500
• Decision Date: 25 June 1975
• Docket Number: No. 2--56944,2--56944
• Parties: Edna Ione KUFER, Appellee, v. Earl CARSON and Phyllis Carson, Appellants.
• Court: United States State Supreme Court of Iowa

Page 500

230 N.W.2d 500 Edna Ione KUFER, Appellee,
v.
Earl CARSON and Phyllis Carson, Appellants. No. 2--56944. Supreme Court of Iowa. June 25, 1975.

Page 501

Charles L. Elson, Leon, for appellants.

Howard E. Strand, Lamoni, for appellee.

Submitted to MOORE, C.J., and MASON, REES, HARRIS and McCORMICK, JJ.

REES, Justice.

Defendant appeals from trial court order dismissing his counterclaim for reformation of a deed and confirming plaintiff's ownership of disputed land. We affirm.

Plaintiff initiated this action under chapter 650, The Code, 1973 for the establishment of boundary lines between her property and land abutting on the south and east owned by defendant. In her petition plaintiff alleged she and her husband acquired title to both parcels in 1946 and conveyed the land lying south and east of the property she presently owned and occupied to defendant by warranty deed executed and delivered August 29, 1964. She further alleged that no visible line of partition separated the land she owned and the land conveyed to defendant and that 'defendant has encroached upon and is attempting to establish some claim to a part of the property rightfully belong(ing to her) . . ..'

The land to which defendant became entitled by the 1964 deed was described in the instrument as follows:

Page 502

'All that part of the Northwest quarter of Section 24, Township 67 North, Range 24, West of the 5th P.M., Decatur County, Iowa, lying North and West of the intersection of the Leon to Lineville Road and the Pleasanton to Lineville Road which lies South and East of a line from the intersection of the Leon to Lineville road and the Cemetery road, running Southwest to the intersection of the Pleasant to Lineville road and the lane to the abandoned school house.'

The disputed land he occupied at the time plaintiff brought this action was situated north and west of the parcel described above, and clearly was not within the description contained in the 1964 deed.

The following diagram illustrates the preceding discussion:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In answer to plaintiff's petition defendant counterclaimed for a reformation of the 1964 deed, alleging the disputed land not described in the deed was nonetheless represented by plaintiff's husband to be included in the 40-acre parcel he purchased in 1964. He asked that the deed be reformed to reflect the understanding of the parties, the reformation to consist of a substitution of the following for the description contained in the deed beginning with the word 'running':

Page 503

'running thence west along the south line of the cemetery lane, thence southwest to the northwest corner of the pond, thence to the northeast corner of the abandoned school house lot and thence south along the east line of said school house lot to the Pleasanton to Lineville road.' (see diagram)

By agreement of the parties this action was tried in equity on defendant's counterclaim, resolution of the reformation issue being thought dispositive of the boundary line dispute. Defendant testified at trial that he had cleared and farmed the disputed land without interruption since 1964 and that his activities were known to plaintiff's husband at all times prior to his death in 1972. He further testified that before the 1964 deed was executed and delivered plaintiff's husband had indicated the property he proposed to purchase would include the land now disputed. The latter testimony was admitted over plaintiff's objections to the competency of defendant to testify concerning transactions with her deceased husband under § 622.4, The Code, 1973 (the Dead Man Statute).

Plaintiff did not testify at trial. Her son testified plaintiff's husband told him he had an arrangement with defendant whereby defendant was allowed to farm the disputed land in exchange for clearing the brush and keeping weeds down. He also testified plaintiff's husband said on one occasion that defendant 'doesn't have the (disputed) ground' and was 'a little bit upset that Mr. Carson kept encroaching on' the farm he owned.

After hearing the evidence trial court submitted findings of fact and conclusions of law, holding defendant's evidence including his testimony regarding transactions with plaintiffs husband was insufficiently clear, satisfactory and convincing to justify reformation of the 1964 deed. A decree was subsequently entered dismissing defendant's counterclaim and establishing boundary lines for plaintiff's property which enclosed the disputed land. Defendant here appeals from the decree entered below.

I. Our review is De novo. Rule 334, Rules of Civil Procedure; Stillman v. Slifer Savings Bank, 216 Iowa 957, 249 N.W. 230. In undertaking De novo review we have a duty to examine the whole record and adjudicate anew rights on the issues properly presented. Weight is given...