Maxwell v. Maxwell

• Court: Washington Supreme Court
• Writing for the Court: DRIVER, Justice.
• Citation: Maxwell v. Maxwell, 12 Wn.2d 589, 123 P.2d 335 (Wash. 1942)
• Decision Date: 04 March 1942
• Docket Number: 28565.
• Parties: MAXWELL v. MAXWELL et ux.

123 P.2d 335

12 Wn.2d 589

MAXWELL v. MAXWELL et ux.

No. 28565.

Supreme Court of Washington

March 4, 1942

Department 1.

Action by Elizabeth Maxwell, administratrix of the estate of James H. Maxwell, deceased, against Melvin Maxwell and wife seeking the cancellation or, in the alternative, correction of a deed to the named defendant, wherein defendants, by their answer, asked that description in deed be corrected so as to conform to their theory of the extent of land intended to be conveyed thereby. From a judgment in favor of defendants, plaintiff appeals.

Cause remanded with direction to correct certain inadvertent errors in the judgment, and judgment otherwise affirmed.

Appeal from Superior Court, King County; James T Lawler, Judge.

John W Dobson and Rummens & Griffin, all of Seattle, for appellant.

Allen, Carey & Roney and Sanford Skidmore, all of Seattle, for respondents.

DRIVER Justice.

Plaintiff, as administratrix of the estate of her deceased husband, James H. Maxwell, brought this action seeking the cancellation or, in the alternative, correction of a deed to the defendant Melvin Maxwell, on the ground that it misdescribed the real property intended to be conveyed. The defendants, by their answer, admitted that the description in the deed was defective and asked that it be corrected, but disagreed with the plaintiff as to the extent of land the parties intended the deed to cover. A trial to the court resulted in a judgment directing its correction in accordance with the defendants' theory and quieting title to the real property in them. Plaintiff appeals. For convenience, Melvin Maxwell will be referred to in this opinion as if he were the only respondent.

The land in controversy is a portion of a larger tract which the decedent, Charles H. Maxwell, apparently had acquired when he and his brother (respondent's father), by agreement, divided the estate of their mother between them, but the record is not altogether clear on that point. The tract is situated about seven miles from Renton, on a county road leading toward Enumclaw. In March, 1917, shortly after her marriage to Mr. Maxwell, appellant moved upon this property and since that time has continuously resided there. The deed from James H. Maxwell and appellant to respondent was executed in April, 1937. Respondent was then contemplating marriage, and his uncle and appellant gave him the deed to the land as a wedding present. James H. Maxwell died in August, 1938, and the following March, when respondent had a survey made and claimed possession of the tract, a dispute arose between him and appellant as to the extent of the gift. In February, 1940, appellant instituted the present action.

The real property is described in the deed as follows: 'Beginning at the Northwest corner of the South Half of Government Lot Six (6), thence South, along the West line thereof, 348.5 feet; thence North Easterly 281. feet more or less, to the County Road, at a point 18515 feet South Easterly, measured along said Road, from the North Line of the South half of said Lot Six; thence North Easterly, along said Road, 185.5 feet--thence West 77.5 feet to the place of beginning, all in Sec. 32, Twp. 23, No. Range 6 EWM.'

Respondent claims that the foregoing description requires but two corrections, namely, the changing of the italicized figure ' 18515' to '185.5,' and the substitution of the word 'Northwesterly' for the italicized word ' North Easterly.' Appellant, however, maintains that, to conform to the intention of the parties, the description should read: 'That portion of the following described tract of land, Beginning at the Northwest corner of the South Half of Government Lot Six (6), Sec. 32, Twp. 23 North Range 6 thence South, along the West line thereof 348.5 feet; thence Northeasterly 281 feet more or less, to County Road at a point 185.5 feet Southeasterly measured along the Southwesterly line of said road from the North line of the South half of said Lot Six (6), thence Northwesterly along said Southwesterly line of said County road 185.5 feet thence West 77.5 feet to the place of beginning; described as follows: Beginning at the most Easterly corner of said tract thence Northwesterly along the Southwesterly line of County road 40 feet thence Southwesterly parallel to the Southeasterly line of the above described tract a distance of 133 feet, thence Southerly 55 feet to said Southeasterly line to a point 171 feet more or less Southwesterly from the point of beginning, thence Northeasterly along said Southeasterly line 172 feet more or less to the point of beginning.'

Appellant and respondent are in agreement, as a comparison of this description with the one in the deed will disclose that the figure ' 18515' should have been '1885.5,' and that the next to the last course in the deed description should have been 'Northwesterly' instead of ' North Easterly.' Uncorrected, the calls, manifestly, do not close, but when the two corrections are made, then the calls close and delineate a quadrilateral parcel having a frontage of 185.5 feet on the county road. This, says the respondent, is the tract his uncle intended to give him. Appellant contends, however, that the parties intended to pass title to a much smaller parcel having a frontage of only 40 feet on the county road and lying within the boundaries of the larger tract which respondent claims. Appellant thus seeks not only to correct manifest errors in the deed description, but also to materially alter it by the addition of a whole new series of calls. She does not charge respondent with fraud or other inequitable conduct with reference to the execution of the deed, and if she is to have reformation of the instrument, it must be on the ground of mutual mistake of the parties thereto. 4 Pomeroy's Equity Jurisprudence, 5th Ed., p. 1000, § 1376.

As a general rule, where both parties have an identical intention as to the terms to be embodied in a proposed written conveyance or agreement, and a writing executed by them is materially at variance with such intention, a court of equity will reform the writing so that it shall express their intention. 2 Restatement of the Law of Contracts, p. 968, § 504. See, also, Moeller v. Schultz, Wash., 119 P.2d 660, and cases therein cited. However, the party seeking reformation of a writing for mutual mistake must establish facts which will warrant the allowance of the remedy by clear and convincing evidence and not by a mere preponderance. 2 Restatement of the Law of Contracts, p. 981, § 511. Vanasse v. Cavey, 167 Wash. 238, 9 P.2d 60; Carew, Shaw & Bernasconi v. General Cas. Co., 189 Wash. 329, 65 P.2d 689; John Hancock Mutual Life Ins. Co. v. Agnew, 1 Wash.2d 165, 95 P.2d 386. In the last cited case, 1 Wash.2d page 176, 95 P.2d page 391, we said:

'The evidence as to the agreement the parties intended to make is conflicting. That is not sufficient. Reformation is a proper remedy where the parties have reached definite and explicit agreement, understood in the same sense by both; but, by their mutual or common mistake, the written contract fails to express that agreement. * * *

'There is a direct conflict in the oral evidence upon the issue as to an agreement respecting the sale of the personal property subject to the lien for existing taxes. Where any doubt exists as to the intent of the parties reformation will not be granted.'

In the case at bar, the evidence is likewise conflicting. Appellant testified that respondent had come to see her husband the day Before the deed was executed, and the proposed conveyance was discussed at that time in her presence. It was definitely understood, she said, that respondent was to get only the smaller 40-foot tract; that respondent told them his father had given him an adjoining 60-foot strip fronting on the highway, and, if he received 40 feet more from his uncle, he would build and operate a gasoline service station on the property. Appellant also pointed out that a hamburger stand, which she had operated during the summer season for a number of years, was situated on the larger tract which the respondent claimed (the dwelling house and other improvements were not so situated); and that the back line of such tract would come within nine paces of the 'front approach' of her home, which stands on higher ground some distance back from the road. However, appellant admitted that she closed the hamburger stand in the fall of 1937 and did not open it again, although, as stated, respondent did not claim possession until March, 1939.

Several witnesses who lived or had places of business near appellant's home testified that, shortly Before the deed was executed, respondent, in a number of different conversations, had told them that his uncle was giving him a 40-foot strip of land, which he intended to use, with an adjoining 60 feet which he would get from his father, to conduct a service station business. Respondent denied making any such statements. He testified that his uncle had intended to give him the larger tract and had pointed it out to him on the ground the day Before the deed was executed. Also, it appeared by undisputed evidence that, while respondent's father did own a 60-foot strip of land adjoining the tract in controversy, he had not, up to the time of the trial, conveyed it to responde...