Parcel v. Myers, 83-560

• Decision Date: 20 March 1985
• Docket Number: No. 83-560,83-560
• Citation: 42 St.Rep. 352,214 Mont. 225,697 P.2d 92
• Parties: Jack Hugo PARCEL, Plaintiff and Appellant, v. Merlin W. MYERS et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 92

697 P.2d 92

214 Mont. 225

Jack Hugo PARCEL, Plaintiff and Appellant, v. Merlin W. MYERS et al., Defendants and Respondents.

No. 83-560.

Supreme Court of Montana.

Submitted on Briefs Nov. 29, 1984.

Decided March 20, 1985.

Mark L. Stermitz, Law Office of John R. Christensen, Stanford, for plaintiff and appellant.

William E. Berger, Wilkins & Berger, Lewistown, Hauge, Ober & Brown, Havre, for defendants and respondents.

MORRISON, Justice.

Myers, respondent/cross appellant, appeals from that portion of the District Court judgment which reduced the purchase price of the contract for deed in favor of Parcel, appellant.

Parcel brought an action against Myers for reformation of the contract for deed containing a defective legal description. Parcel's action against the surveyors responsible for the erroneous survey was dismissed with prejudice due to Parcel's failure to respond to surveyors' motion to dismiss. Finding no liability of defendants to plaintiffs, the trial court reformed the contract by correcting the legal description and reducing the purchase price. Parcel's appeal from denial of fees and costs is addressed in our first opinion published in Parcel v. Myers (Mont.1984), 697 P.2d 89. This supplemental decision discusses Myers' cross appeal.

Jack Parcel purchased approximately eleven acres from Merlin and Marcia Myers in 1979. The contract for deed required Myers to have a survey of the subject property prepared and a certificate of survey recorded. Parcel had the requisite survey prior to closing when the contract for deed was executed.

Error in the legal description of the real estate resulted from the surveyor using the edge of the adjacent county road as the starting point of the description instead of the center line. This mistake shifted the otherwise correct description of the land thirty feet to the north. Pursuant to this defective certificate of survey, the Myers contracted to convey a strip of land, thirty feet wide and approximately 700 feet long, which belonged to their neighbor to the north.

Parcel brought an action against Myers to have the legal description corrected and the contract price reduced commensurate with that thirty foot wide strip of land which the Myers did not have merchantable title to convey. The district court judgment reformed the contract to correctly describe the land conveyed and reduced the total purchase price in the amount of $1,500.

The singular issue in this cross-appeal is:

1. Whether the sale of the property was "in gross" barring appellant's entitlement to reformation of the contract for deed by reduction of purchase price.

At the outset of our discussion, we mention that appellant does not address this issue in either the original brief or a reply brief. Technically, the matter could be resolved by default in favor of respondent/cross appellant.

Myers contends that the real estate transaction was a sale in gross which does not entitle the purchaser to any reduction in the total purchase price. We agree.

The trial court's findings and conclusions on this issue are internally inconsistent and warrant reversal. Although the specific term "in gross" is not used in the language of its decision, the trial judge clearly described a bulk real estate transaction between Parcel and Myers in its findings.

In Finding No. V the trial court found:

"That Defendants and/or their agent represented to Plaintiff the property to be conveyed was within the existing fences, excluding the ...