Olsen v. Olsen

• Decision Date: 08 May 1945
• Docket Number: 46634.
• Citation: 18 N.W.2d 602,236 Iowa 313
• Parties: OLSEN v. OLSEN et al.
• Court: Iowa Supreme Court

18 N.W.2d 602

236 Iowa 313

OLSEN v. OLSEN et al.

No. 46634.

Supreme Court of Iowa

May 8, 1945

M. L. Mason and M. C. Coughlon, both of Mason City for appellants.

John A. Senneff, of Mason City, for appellee.

MILLER Justice.

This is an action to quiet title to a farm, a quarter section in Cerro Gordo County, and to certain personal property on the farm or, in the alternative, to impress a lien on the land for improvements placed thereon by the plaintiff. Certain facts are undisputed or so clearly established as to be treated as verities by us. A statement of such facts will clarify the issues presented by the rather voluminous pleadings herein. Such facts are as follows: plaintiff, a farmer, was born in Norway, was 70 years old at the time of trial, was uneducated, could not read or write except to sign his name his wife, Aleta B. Olsen, was deceased at the time of trial four children had survived her, Mildred Van Laere, Gladys Olsen, Clare Olsen and Arlin C. Olsen; the farm in question had been purchased by plaintiff from his parents; he owned it when, at 27, he married Aleta; in 1932, plaintiff was ill, thought that he was going to die, and executed a deed to the farm to his wife, Aleta, so that, in the event of his death, she could continue to farm it and would not be embarrassed by having the title thereto divided between herself and the children; plaintiff recovered and continued to farm the land as his own; in 1942, Aleta became ill and executed to plaintiff two deeds, one to certain land in Hancock County, Iowa, in which she had an undivided one-eighth interest subject to a life estate, and the other to certain property in Wisconsin, in which she had an undivided one-fifth interest; these deeds did not include, in the property conveyed, the quarter section in Cerro Gordo County; after their mother's death, two of the children, Gladys and Clare, conveyed to plaintiff any interest they might have in the farm. The defendants are Arlin C. Olsen, son, and Mildred Van Laere, daughter of plaintiff, August Van Laere, husband of Mildred, and C. I. Snyder, administrator of Aleta Olsen's estate.

It was the contention of plaintiff and the trial court found that the evidence established: that the conveyance of the farm by plaintiff to his wife Aleta in 1932 was made with no consideration being paid by her therefor, pursuant to an agreement that, in case plaintiff regained his health, the farm would be deeded back to him; that, at the time Aleta executed the deeds in 1942, she intended to convey all of her property to plaintiff; the deeds, which were prepared for her, were believed to convey all of her land to plaintiff; the farm in Cerro Gordo County was not included in the deeds by oversight and mistake; the evidence is clear, satisfactory and convincing as to Aleta's intention and that an oversight or mistake occurred; that the personal property on the farm was owned by plaintiff, was never formally transferred to Aleta; Aleta listed the property as her own; if a transfer to her could be created by conduct or admissions, her claim of title thereto was abandoned as early as September 1941. Pursuant to such findings, the trial court entered a decree quieting title to the personal property and to the Cerro Gordo County farm in plaintiff. The defendants appeal from such decree. They assert eleven assignments of error. We will first consider those assignments which relate to that part of the decree which quieted title to the farm in plaintiff.

I. As far as the action to quiet title to the farm is concerned, relief was granted under the authority of a court of equity to reform written instruments. Plaintiff's theory is: that in 1932 he made an oral contract with hiw wife, the terms of which were that he would convey the farm to her and, if he recovered from his illness, she would reconvey the farm to him; he performed his part of the agreement in 1932 by conveying the farm to her; she undertook to perform her part of the agreement in 1942 by executing two deeds which she intended, and the parties believed, to convey to plaintiff all of her property; by oversight or mistake, the deeds failed to include, in the description of the property conveyed, the Cerro Gordo County farm. The decree in effect reformed the deeds of 1942 by treating them as a conveyance of the Cerro Gordo County farm to correct such oversight or mistake.

Counsel for plaintiff cites, as authority for the decree herein, our decision in Kessler v. Terrell, 192 Iowa 442, 185 N.W. 15. In that case a deed failed to properly describe the property the grantor intended to convey. He refused to execute a correction deed. The grantee brought an action to quiet title. The grantor cross-petitioned to have title quieted in him. The court dismissed the grantee's petition and entered a decree in favor of the grantor on his cross-petition. On appeal, this court reversed the decree and ordered that the grantee be given the relief demanded in her petition, stating, at page 447 of 192 Iowa, at page 17 of 185 N.W., as follows: 'We do not believe that, under these circumstances, the appellee is now in a position to take advantage of the fact that the deed contained an erroneous description of the premises. It is not to be forgotten that he testified that he executed the deed for the purpose of conveying the interest that he had in the property he had received from his grandfather. Upon his own evidence, a court of equity would have been warranted in reforming the deed to correct the misdescription of the premises. This proceeding to quiet the title is in effect no more than an action for reformation of the deed in regard to the description of the property.'

The foregoing pronouncement clearly sustains the trial court in so far as its power to act is concerned. The question still remains whether the record supports the findings and decree.

II. Counsel for defendant to not meet the theory of the plaintiff and the trial court but treat the action as one which seeks to vary the terms of the deed of 1932 by adding thereto provisions for a reversion of the title conveyed in the event of the happening of a condition subsequent. A large number of authorities under the parol evidence rule are cited in support of their contentions. It is not necessary to discuss or decide such contentions. They have no bearing on the issue before us. We have held repeatedly that, in a proper case for the reformation of a written instrument, the parol evidence rule has no application.

In Re Simplot's Estate, 215 Iowa 578, 581, 246 N.W. 396, 397, we stated:

'The parties agree in the broad statement of the rule which forbids the acceptance of parol evidence to contradict or vary the terms of a written contract. Their disagreement arises over the application of the rule and over the so-called 'exceptions' to the rule. * * * These so-called 'exceptions' may be classified in the main as follows:

'1. The rule has no application to suits in equity for reformation of written contracts. Parol evidence is always admissible in such a case. * * *'

In Wormer v. Gilchrist, 210 Iowa 463, 466, 230 N.W. 856, 858, we stated: 'The well-settled rule that parol evidence cannot be invoked to vary the terms of a contract has no application to prevent proof of a mistake, or reform an instrument to correct the mistake. Greiner v. Swartz, 167 Iowa 543, 149 N.W. 598. See, also, Good Milking Mach. Co. v. Galloway, 168 Iowa 550, 150 N.W. 710; Bonbright v. Bonbright, 123 Iowa 305, 98 N.W. 784; Hausbrandt v. Hofler, 117 Iowa 103, 90 N.W. 494, 94 Am.St.Rep. 289; Lee & Jamieson v. Percival, 85 Iowa 639, 52 N.W. 543; Stafford v. Fetters, 55 Iowa 484, 8 N.W. 322.'

The cases, above quoted and cited, definitely establish the rule in this jurisdiction. Accordingly, defendants' assignments of error Nos. I, II, III, IV, V, VI and IX need be give no further attention by us.

III. Defendants' assignments of error Nos. VII and VIII challenge the competency of plaintiff's evidence to establish the basis for reformation of the 1942 deeds.

Henry Curvo, a lawyer, prepared for Aleta Olsen and at her request the two deeds in 1942, Exhibit 'Z' being the deed to the Wisconsin property and Exhibit 'Z-1' being the deed to the Hancock County property. He testified as to the nature of his employment as follows:

'Q. * * * did she ask you for any advice, or anything of that kind, Mr. Curvo? A. No, sir, nothing.

'Q. And at her request, you merely prepared these deeds? A. Yes, sir.

'Q. And that is all that you did do? A. Yes sir.'

Numerous objections were made to his testimony as being privileged. Under this record the objections were not well grounded.

In Mueller v Batcheler, 131 Iowa 650, 652, 653, 109 N.W. 186, 187, we stated: 'Over defendant's objections, the court received the testimony of one Damon, an attorney, who drew up the instruments of mutual conveyance and sale, as to the conversations in his presence between William C. Knight and his wife relating to the purposes for which these conveyances were made, and the oral promises of the parties to transfer to plaintiff all property of the survivor. But the conversations and communications to which the testimony of the witness related do not appear to have been by way of consultation with, or the procuring of advice from, Damon as a lawyer, but for the purpose of instructing him as to the drafting of the instruments which he was called upon to prepare for the purpose of carrying out the intention of the parties already formed. No communications seem to have been made to him as an attorney or legal adviser. He was simply called upon as a scrivener or conveyancer to prepare the particular instruments. Indeed, he does not seem to have been consulted with reference to the form of...