LeBaron v. Crismon

• Decision Date: 30 March 1966
• Docket Number: No. 7765,7765
• Citation: 100 Ariz. 206,412 P.2d 705
• Parties: Milo LeBARON et al., Appellants, v. William A. CRISMON, Administrator of the Estate of George E. Crismon, deceased, Appellee.
• Court: Arizona Supreme Court

Page 705

412 P.2d 705

100 Ariz. 206

Milo LeBARON et al., Appellants, v.William A. CRISMON, Administrator of the Estate of George E. Crismon, deceased, Appellee.

No. 7765.

Supreme Court of Arizona, In Division.

March 30, 1966.

Rehearing Denied April 26, 1966.

Rhodes, Killian & Legg and John G. Hough, Mesa, for appellants.

Laney & Laney, Phoenix, for appellee.

BERNSTEIN, Vice Chief Justice.

Appellants, hereinafter called plaintiffs, appeal from a judgment in favor of appellee, hereinafter called defendant, entered by the Maricopa County Superior Court sitting without a jury.Defendant died while the appeal was pending and his Administrator was substituted as appellee, hereinafter called defendant, pursuant to Rule 73(t),Rules of Civil Procedure, 16 A.R.S.

Plaintiffs brought suit to specifically enforce an agreement entered into by the parties whereby defendant was to convey a parcel of land in Mesa, Arizona.The trial court heard testimony, then entered judgment together with a memorandum in which the court stated that the various agreements entered into by the parties were sufficient to remove the problem of the parol evidence rule and that the price, terms and security were clear.However, the court stated it could not determine the precise land area to be conveyed and found it was impossible to say with any degree of certainty what the parties actually had in their minds at the time the written instruments were prepared.

Defendant originally owned nine acres of land and, before negotiating with plaintiffs, sold approximately one-third of the south end of his land.Defendant then executed a purchase contract with plaintiffs to sell to them a little less than two-thirds of his remaining land.In this original contract the description of the land to be conveyed was as follows:

'A piece 402 411 situated 293 N. of the South line of nine acres owned by Geo. E. Crimson.With a 60 roadway on North and South line running in from the South Country Club Dr. One to be Third Ave., the other to be Second Ave. Deeds to this property to be furnished the City of Mesa by the seller herein.'(Emphasis added.)

There is no dispute as to the original south line of defendant's land.Therefore, the south line of the property to be conveyed is definitely fixed by the contract.

The defendant thereafter signed escrow instructions which described the property to be conveyed as follows:

'The North 400 feet, more or less, of the South 704 feet of the following described property: That part of the SE 1/4Sec. 21, T 1 N, R 5 E, described as follows:

Beginning at a point 447.18 feet East of the NW corner of SE 1/4 SE 1/4, said Sec. 21; thence North 88 degrees 57 30 East 402.00 feet; thence South 987.68 feet; thence North 89 degrees 56 West 401.93 feet; thence North 979.48 feet to the point of beginning.The North line of this property is to be the South line of the extension westward of the present 2nd Ave. to the east of the property in question.'(Emphasis added.)

The north line of the property to be conveyed is definitely fixed by the escrow instructions and the east and west boundaries are not disputed.

The court should decree specific performance of an agreement for the sale of land if the agreement is in writing signed by the party to be charged and is definite in its terms.Suttle v. Seely, 94 Ariz. 161, 382 P.2d 570;Colmenero Canal Company v. Babers, 80 Ariz. 339, 297 P.2d 927.This court has held that the agreement need not be contained in one paper but may be in several so long as they can be identified with reasonable certainty.Carley v. Lee, 58 Ariz. 268, 119 P.2d 236.An interpretation of the instruments is a question of law to be determined by this court independent of the trial court's findings.Daily Mines Co. v. Control Mines, Inc., 59 Ariz. 138, 124 P.2d 324.

Defendant contends the instruments are ambiguous and that the parties did not come to a meeting of the minds concerning the parcel of land to be conveyed, and further contends an ambiguity arises from the fact that the exact location of the westward extension of Second Avenue is not fixed in the instruments.The question before this court is whether there is an ambiguity which will justify the admission of parol evidence to vary the definite and clear property description contained in the instruments.We think not.In the case of McNeil v. Attaway, 87 Ariz. 103, 348 P.2d 301this court said:

'The description in a deed of the property conveyed thereby is considered ambiguous and subject to construction only if it is not possible to relate the description to the land without inconsistency.'87 Ariz. at 109, 348 P.2d at 305.

There is no inconsistency on the face of the instruments and the description can be related to the land.Therefore, parol evidence should not have been admitted.'Extrinsic evidence is admitted to resolve ambiguities, not to create them.'McNeil v. Attaway, supra, 87 Ariz. at p. 109, 348 P.2d at p. 305.

The existing Second Avenue is 132 feet wide but the purchase contract entered into between the parties provides that the extension westward of Second Avenue is to be 60 feet wide.Obviously, the exact...