Neeley v. Kelsch
| Decision Date | 21 August 1979 |
| Docket Number | No. 16066,16066 |
| Citation | 600 P.2d 979 |
| Parties | Mary NEELEY, Plaintiff and Appellant, v. Clarence O. KELSCH and Rhoda Mae Kelsch, husband and wife, et al., Defendants and Respondents. |
| Court | Utah Supreme Court |
Tex R. Olsen of Olsen & Chamberlain, Richfield, for plaintiff and appellant.
Paul R. Frischknecht, Manti, for defendants and respondents.
The plaintiff, hereafter Neeley, brought this action to quiet title to certain real property in Sanpete County, Utah. Defendants, Clarence O. Kelsch and Rhoda Mae Kelsch, hereafter Kelsch, counterclaimed seeking to quiet title to a portion of real property Neeley claims. Defendants Conovers and Ottosens appeared at the time of the trial, but asserted no evidence or claims adverse to Neeley. They claimed no interest in the disputed land and did not join in this appeal.
The district court entered judgment in favor of Kelsch, which quieted title in them. We reverse, and remand for rendition of judgment for Neeley. Costs awarded to Neeley. All statutory references are to Utah Code Ann., 1953.
The common grantor of the parties, Arta Corbet, owned a parcel of land with a county road bisecting the land into a north and a south portion. By warranty deed dated June 7, 1957, Kelsch received title to land from Arta Corbet, described as:
Beginning at the northeast corner of the southwest quarter of the southeast quarter of Section 34, Township 18 South, Range 2 East of the Salt Lake Meridian, thence west 4.50 chains, thence south 17o 30' west 8.15 chains, thence west 5 chains, thence south 11o 30' west 4 chains, thence north 78o 30' west 12 chains, thence north 15.17 chains, thence south 75o east 5.90 chains to the quarter Section line running north and south in Section 34, thence south 3.60 chains, thence east 4.455 chains, thence south 39o west 3 chains, thence south 19o 30' west 1.73 chains, thence south 34o east 3.74 chains to Old County Road to Canyon, thence north 56o east 0.75 of a chain, thence north 34o west 3.74 chains, thence north 19o 30' east 1.73 chains, thence north 39o east 3 chains, thence north 19o east 4.80 chains, thence south 80o east 14.42 chains, thence south 2 chains to the place of beginning, containing 22.40 acres. The parcel consists of all land lying north of the County Road which, in actuality, is approximately 15 acres instead of 22 acres.
The above metes and bounds description, however, left two parcels unconveyed by Corbet north of the county road: the property disputed in this action, and a parcel to the northwest, later conveyed to a neighbor, Perry Eliason, in 1962. Kelsch's metes and bounds description does not include the disputed property.
On August 21, 1965, in a "Uniform Real Estate Contract," Neeley contracted to buy from Corbet:
All of the lands lying south of the County Road . . . , in the name of Arta Corbet, . . . which were inspected and agreed to by the Buyers and the Seller on August 21, 1965.
On November 23, 1966, the Kelsch deed was recorded.
By warranty deed dated May 30, 1968, and recorded June 28, 1968, Neeley received title to land from Arta Corbet. With a one chain discrepancy, the metes and bounds description follows Kelsch's description then goes west away from Kelsch's land, crossing the road, which at that point runs north-south only to turn back west where the land which Corbet sold to Eliason is located. Neeley's description then runs southeast then northeast to include the disputed property, and all of Corbet's land south of the County Road. At trial, Mr. Hutchinson, a surveyor, testified the disputed land was comprised of 8.47 acres.
The trial court admitted into evidence, over the objection of counsel for Neeley, the "Uniform Real Estate Contract" between Neeley and Corbet with its language of lands south of the road "which were inspected." Again over an objection, the trial court allowed inquiry into prior negotiations between Neeley and Corbet, Neeley testifying she did not inspect property north of the road, but had not inspected all of the land south of the road either. The trial court, over an objection, heard Kelsch testify he thought he was receiving land including the disputed parcel. Over another objection, the court also admitted into evidence a deposition of Corbet in which she claimed she intended to convey the disputed land to Kelsch, and not to Neeley.
The first issue is whether the trial court erred in holding mutual mistake as a basis for reforming the deeds. The general rule is that parol evidence may not contradict, vary, or add to deeds. 1 This Court, however, has recognized mutual mistake as an exception, 2 even if the property description is definite and certain. 3 This Court has said that one type of mistake justifying reformation is where the deed fails "to conform to what both parties intended." 4 Nevertheless, when a deed executes a contract of sale of land, all provisions of the prior contract are usually merged into the deed; and when a party denies merger due to mistake, he has the burden to show mistake by Clear and convincing evidence. 5
Kelsch has not presented clear and convincing evidence of mutual mistake, even though Corbet and Kelsch testified Kelsch was to receive the land; and even though Mrs. Neeley testified she did not know she was to receive the disputed land north of the road. Also, Neeley's land contract does speak of land south of the road. Mistake is not, however, clear.
The land contract does not prove mistake because of the merger doctrine; anything could have happened before Corbet signed the warranty deed. Kelsch's deed describes fifteen acres. It was the testimony of the surveyor the metes and bounds description does plot out a fifteen acre parcel. In addition, the concluding sentence of the description counsels (in consonance with the metes and bounds) the parcel in actuality is approximately fifteen acres instead of twenty-two acres. If Kelsch had the disputed land, they would have over twenty-three acres. Since evidence of Corbet's intention to convey to Kelsch is not clear, the trial court erred in ruling mutual mistake.
In addition, a party seeking reformation of a deed due to mutual mistake must plead such mistake with particularity. Rule 9(b) of the U.R.C.P. requires "(i)n all averments of . . . mistake, the circumstances constituting...
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