McCall v. Carlson

• Decision Date: 22 August 1946
• Docket Number: 3457.
• Parties: McCALL v. CARLSON et al.
• Court: Nevada Supreme Court

172 P.2d 171

63 Nev. 390

McCALL v. CARLSON et al.

No. 3457.

Supreme Court of Nevada

August 22, 1946

Rehearing Denied Sept. 25, 1946.

Appeal from District Court, Fifth District, Nye County; Wm. D Hatton, Judge.

Action by T. A. McCall against O. H. Carlson and Freda Carlson for a determination of plaintiff's rights in certain land and to enforce a certain option agreement. From a judgment quieting title to land in defendants, plaintiff appeals.

Affirmed.

Lowell Daniels, of Tonopah, Peter Breen, of Goldfield, and Guy Preston Greenwald, Jr., and A. P. G Steffes, both of Los Angeles, Cal., for appellant.

William J. Crowell, of Tonopah, and Buel R. Wood, of Los Angeles Cal., for respondents.

HORSEY Justice.

The facts as proven by the evidence and upon the basis of which the questions to be determined on this appeal are predicated are substantially as follows:

On February 25, 1937, and prior thereto, the appellant, T. A. McCall, was the owner and in the possession of 640 acres of land in Nye County, Nevada, being the same land described in paragraph IV of plaintiff's complaint and which is the subject matter of this action. On the above mentioned date, the appellant purchased some mining equipment of the respondents, and, to secure the payment of a balance in the sum of $1800 due upon the purchase price of same, executed, in favor of respondent, Freda Carlson, a mortgage upon said land, to secure a note payable on or before two years from date, with interest at six per cent (6%) per annum, payable semi-annually.

McCall did not pay anything on the indebtedness secured by the mortgage, except that, in connection with a transfer of certain equipment, at O. H. Carlson's instigation, to a man in Arizona, McCall was credited, upon the interest, with the sum of $125.

On June 9, 1941, the principal of the indebtedness, together with interest thereon, and the amounts of taxes which had been advanced by the respondents, was past due and remained unpaid.

About ten days prior to said last mentioned date, O. H. Carlson and McCall had a conversation, in which, according to McCall's testimony, from which we quote, 'Carlson just said that the mortgage was in bad shape, and that he wanted me to give him a quitclaim deed and he would give me an option to purchase back and a lease on it and I would remain in possession of it and so on, and I just considered it was putting it in another form.'

In his further testimony, the following questions were asked, by Mr. Breen, and answers given by Mr. McCall:

'Q. What happened with reference to this mortgage, if anything, at that time? (Referring to June 9, 1941). A. I gave Mr. Carlson a quitclaim deed and he gave me an option to purchase with a lease, I believe, and incidental papers. It was an arrangement he wanted to make.

'Q. Just immediately prior to the execution of the deed you speak of, did you have any conversations with either of the Carlsons with reference to the transaction? A. Yes, with Mr. Carlson.

'Q. State the place and time as near as you can remember. A. I usually talked with Mr. Carlson at his home in the evenings. I don't recall the exact conversation, but the gist of it was that he wanted to get the mortgage in better shape. He wanted me to give him a quitclaim deed and take back an option to purchase with a lease.'

As to the conversation at the time, or shortly before, the deed was executed by McCall and the lease and option was executed by the Carlsons, O. H. Carlson upon being asked, by Mr. Wood, his attorney, to relate the conversation, testified as follows:

'Well, before that thing come on here, we talked it over a time or two and there was some two or three hundred dollars taxes due and as it would cost some four hundred dollars to foreclose, we talked it over and we decided that he would give me a deed and I would pay up the taxes and I say there is four hundred dollars if he take up the option and if he don't take up the option I have the four hundred, and he would pay the interest same as he had been doing. And I told him when we made up the papers, 'Now, if you don't take up the option when due, you have no land, Tex, because you never pay me and I do not want things that way. You have to take up that option when due or you will be out, the land will be mine. There will be no extension.' It had been dragging along too long, and he argeed on that. 'If I don't take up the option,' he said, 'the land is yours."

T. A. McCall, the appellant, and O. H. Carlson and Freda Carlson, the respondents, met on June 9, 1941, by appointment, at Mrs. P. H. Harding's home, 2128 Reservoir Street, Los Angeles, Cal. Mrs. Harding was in the insurance business and a notary public. At that time and place, the appellant executed a quitclaim deed to said land, to O. H. Carlson and Freda Carlson, the respondents. Said deed was dated the 9th day of June, 1941, was then and there acknowledged before P. H. Harding, notary public, and was delivered to respondents on said June 9, 1941. A certified copy of said deed was admitted in evidence as plaintiff's exhibit 'H.'

Contemporaneously with the execution and delivery of said quitclaim deed, Mrs. Harding, at the request of Mr. Carlson, wrote a receipt or release (defendant's exhibit 2), which was, then and there, executed by respondents, Freda Carlson and O. H. Carlson, and delivered to appellant, T. A. McCall, and is as follows:

'In lieu of quitclaim deed given by T. A. McCall to O. H. Carlson and Freda Carlson this 9th day of June, 1941, we hereby release T. A. McCall from any further obligation on a certain note for Eighteen Hundred & no/100 Dollars ($1800.00), made the 25th day of February, 1937.

'Signed Freda Carlson

'O. H. Carlson'

On the same occasion, when said parties were present at Mrs. Harding's, a document entitled, 'Lease and Option to Purchase' was signed by O. H. Carlson, Freda Carlson and T. A. McCall, and was then and there acknowledged by said parties before Mrs. Harding, notary public. Said document was admitted in evidence as plaintiff's exhibit 'I,' and that portion thereof constituting such 'Option to Purchase' is as follows:

'In consideration of the sum of Three Dollars ($3.00) receipt of which is hereby acknowledged, Lessors agree that at any time during the term of this lease Lessee may purchase the above described property and Lessors agree to sell said property to Lessee for the sum of Two Thousand Two Hundred and Ninety Dollars ($2,290.00) and interest to date of payment, plus whatever taxes levied and assessed upon said property were paid by the Lessors. If the Lessee's option is exercised, the total of said purchase price shall be paid on or before December 5, 1942, in the following manner:

'Lessee shall pay to Lessors, on or before June 5, 1942, the sum of One Thousand One Hundred and Forty-Five Dollars, $1,145.00), at Six Per Cent (6%) per annum from the date of this lease and interest to the date on which said payment is made, plus whatever taxes levied and assessed upon said property were paid by the Lessors; and the balance of said purchase price shall be paid on or before December 5, 1942.

'If Lessee fails to pay the above installments, or either of them promptly, when the same becomes due, this lease and option shall immediately terminate and becomes void and in the event of the refusal or failure of the said Lessee to surrender and deliver up immediate possession of the said real property upon the termination of said lease and option, and it should become necessary to institute a suit or action for the immediate possession of said real property, or to terminate said lease and option, then and in the event the said Lessees agree to pay unto the said Lessors such sum as the Court shall adjudge reasonable as attorney's fee in said suit or action.

'All of the terms and provisions of this lease and option shall be binding upon the parties hereto, their heirs, successors and assigns.

'In witness whereof, the parties hereto have hereunto set their hands the day and year first above mentioned.'

It appears from the testimony of the appellant that in May, 1942, and shortly prior to the time when the first installment of $1,145, by the terms of the option, would become due, on June 5, 1942, appellant had a conversation with respondent, O. H. Carlson. In that connection, appellant testified as follows:

'I told Mr. Carlson, I told him I had some money coming in in which case I wanted to clean it up and if I did not have I had arranged to borrow the money to pay on it. In which case I wanted to put it through escrow; in any case I wanted to put it through escrow. I wanted to know at that time if he was agreeable to such an arrangement. He said he was, that he wanted to do anything to help, that he wanted the money, not the land. He said he wouldn't pay any attention to the due date, and I said I wanted to pay it all off and all I wanted to know was that he hadn't encumbered the title and that is why I wanted to put it in escrow. And it was put in escrow later. That is the gist of my conversations with Mr. Carlson, and then, I think I told him that we would be ready to go to escrow in a day or two, or a few days, and I think on, along about, I am recalling it from memory, and basing it on the date of a letter from Mr. Walden, and I think on May 2nd I phoned and asked if he would be ready to go to escrow in the morning, and Mrs. Carlson answered the phone and informed me that Mr. Carlson had been called out of town suddenly and would be gone possibly a week or ten days and that he had appointed an attorney to take care of the matter, and she gave me the attorney's address, a Mr. Walden * * *.'

After learning from Mrs. Carlson that Mr. Carlson was out of town and being...