Paurley v. Harris

• Citation: 75 Idaho 112,268 P.2d 351
• Decision Date: 16 March 1954
• Docket Number: No. 7927,7927
• Parties: PAURLEY ex ux. v. HARRIS ex ux.
• Court: United States State Supreme Court of Idaho

Page 351

268 P.2d 351

75 Idaho 112

PAURLEY ex ux. v. HARRIS ex ux.

No. 7927.

Supreme Court of Idaho.

March 16, 1954.

Fairchild & Fairchild, Boise, for appellants.

Maurice H. Greene and Raymond D. Givens, Boise, for respondents.

TAYLOR, Justice.

Lots 1, 2 and 3 in Block 2 of Lover's Lane addition to Boise City constitute a parallelogram, the lines of which do not run true north and south or true east and west. The side lines on the east and west run some few degrees to the east of true north and to the west of true south. The lots were owned by one Lillian Ferrell. On June 30, 1947, she entered into a contract with the defendants for the sale to them of the north one-half of the property, described in the contract as the 'North One Half of lots 1, 2, and 3 * * *.' March 10, 1950, she contracted to sell to the plaintiffs the remainder, described as the 'South Half of Lots 1, 2, and 3 * * *.' About a month after entering into possession, some time in July or August, 1947, the defendants erected a board fence on what they claim to be the dividing line between the property purchased by them and that retained by the seller. This fence is somewhat to the south of a line, drawn parallel to the north and south end lines of the parallelogram, which would divide the property in equal parts.

Plaintiffs, claiming to this center line, brought this action in ejectment to obtain possession of the area lying between the fence and the center line. After certain denials and admissions, the defendants in their answer allege their contract, a description of the property claimed by them thereunder, then follows lengthy allegations concerning prior occupancy of the respective tracts, and negotiations between defendants and the former owner leading up to the sale. They further allege that prior to their contract there was no division line, mark or monument separating the two portions of the property; that the owner Ferrell, acting through an agent, represented to them that the dividing line was located as now claimed by them; and that the agent pointed out and indicated the course of the division line; that they believed, and relied on, these representations in contracting to buy; that almost immediately after taking possession they built the fence referred to, leveled the ground, planted lawn, trees and shrubbery thereon and have since continuously occupied same; that at the time plaintiffs contracted to purchase the south one-half of the property they knew that defendants occupied and claimed the property enclosed by the fence; that defendants' contract of purchase was drawn by the owner Ferrell; that the description of the property therein contracted for is erroneous and does not properly describe the property sold to them; that the mistake went unnoticed by defendants; that they believe the mistake was mutual and, if not, then, in that event, the seller perpetrated a fraud upon them.

On plaintiffs' motion the court struck from the answer paragraphs four through eighteen, containing the foregoing and other affirmative allegations, on the ground that the same are immaterial, sham and frivolous. On the trial, defendants offered evidence to the effect that Mrs. Ferrell, accompanied by a real estate agent, came to their house and proposed the sale; that she and her agent pointed out the division line to be established, and that stakes were driven to mark the line. The court sustained the objection that this offered evidence was incompetent; involved matters merged in the contract; and that the contract could not be varied by such proof.

The striking of the affirmative allegations from the answer and the rejection of this offered proof presents the controlling issue on this appeal. The general rules applicable are not in question. Oral stipulations, agreements and negotiations, preliminary to a written contract, are presumed merged therein, and will not be admitted to contradict or vary its plain terms. Hurt v. Monumental Mercury Mining Co., 35 Idaho 295, 206 P. 184; Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581; Larsen v. Buys, 49 Idaho 615, 292 P. 239; Fidelity Trust Co. v. State, 72 Idaho 137, 237 P.2d 1058. Fraud or mistake may be shown, in any case, to void or reform a contract. Udelavitz v. Ketchen, 33 Idaho 165, 190 P. 1029; Gould v. Frazier, 48 Idaho 798, 285 P. 673; Advance-Rumely Thresher Co. v. Jacobs, 51 Idaho 160, 4 P.2d 657; Creem v. Northwestern Mut. Fire Ass'n, 56 Idaho 529, 56 P.2d 762; Utilities Engineering Institute v. Criddle, 65 Idaho 201, 141 P.2d 981.

Although burdened and commingled with much that is sham and redundant, we think defendants' imperfect pleading of fraud or mistake was sufficient for the admission of the evidence offered, and should not have been stricken.

'The particular rule applicable here is that where the seller and the buyer go upon the land and there agree upon and mark the boundary between the part to be conveyed and the part to be retained by the seller, the line thus fixed controls the courses and distances set out in the deed executed to effectuate the division agreed upon.' Campbell v. Weisbrod, 73 Idaho 82, at page 89, 245 P.2d 1052, at page 1057.

Applying that rule here, and assuming that defendants' proof would establish the facts, if the former owner and the defendants went upon the property prior to the execution of the contract, and there agreed upon a dividing line which was marked upon the ground, and the defendants thereafter contracted to buy, relying upon the agreed boundary, took possession, and occupied and enclosed the property up to the line agreed upon, and such possession was known to the seller, who acquiesced therein for a considerable period of time, such a state of facts would support the conclusion that the seller is bound by the dividing line agreed upon, even though it varies from the description written in the contract. Atwell v. Olson, 30 Wash.2d 179, 190 P.2d 783; Arnold v. Hanson, 91 Cal.App.2d 15, 204 P.2d 97; Angell v. Hadley, 33 Wash.2d 837, 207 P.2d 191; Lake, for Use and Benefit of Benton v. Crosser, 202 Okl. 582, 216 P.2d 583; Nebel v. Guyer, 99 Cal.App.2d 30, 221 P.2d 337; Frericks v. Sorensen, 113 Cal.App.2d 759, 248 P.2d 949; Pacific Gas & Electric Co. v. Minnette, 115 Cal.App.2d 642, 252 P.2d 642; Appeal of Moore, 173 Kan. 820, 252 P.2d 875; Millikin v. Sessoms, 173 N.C. 723, 92 S.E. 359; 170 A.L.R. Annotation 1144. Cf. Mulder v. Stands, 71 Idaho 22, 225 P.2d 463; Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006.

What is here said of acquiescence by the seller is not to be construed as a holding that such acquiescence alone for the period here involved would be sufficient to establish title by 'acquiescence'. See Lewis v. Smith, 187 Okl. 404, 103 P.2d 512. Draper v. Griffin, 61 Cal.App.2d 281, 142 P.2d 772; Willie v. Local Realty Co., 110 Utah 523, 175 P.2d 718; Needham v. Collamer, 94 Cal.App.2d 609, 211 P.2d 308; Dragos v. Russell, Utah, 237 P.2d 831; Martin v. Lopes, Cal.App., 164 P.2d 321; Id., 28 Cal.2d 618, 170 P.2d 881. Here the seller's acquiescence is merely regarded as competent evidence of the agreement and of the fraud or mistake by reason of which the contract, subsequently drawn by the seller, did not conform to the agreement. Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006; Mello v. Weaver, 36 Cal.2d 456, 224 P.2d 691; Crook v. Leinenweaver, 100 Cal.App.2d 790, 224 P.2d 891; Rahlves & Rahlves, Inc., v. Ambort, 118 Cal.App.2d 465, 258 P.2d 18.

As indicated in Campbell v. Weisbrod, supra, such an agreed boundary would also be binding upon a successor in interest of the seller, who purchased with notice of the agreement. The boundary, which defendants claim, was clearly marked by 'a tight board fence', four or five feet in height, and the area on defendants' side of the fence was planted to lawn, shrubbery and trees. This would constitute notice to an intending purchaser, of defendants' possession. One buying property in the possession of a third party is put on notice of any claim of title or right of possession by such third party, which a reasonable investigation would reveal. Nampa & Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75; Nelms v. Miller, 56 N.M. 132, 241 P.2d 333; Waltrip v. Cathcart, 207 Okl. 404, 250 P.2d 43; J. R. Garrett Co. v. States, 3 Cal.2d 379, 44 P.2d 538; Marlenee v. Brown, Cal.App., 128 P.2d 137; Three Sixty Five Club v. Shostak, 104 Cal.App.2d 735, 232 P.2d 546; 55 Am.Jur., Vendor and Purchaser, § 712; 66 C.J., Vendor and Purchaser, § 1012. Moreover, plaintiff Paurley testified in effect that he saw the fence and knew of defendants' occupancy of the disputed area before he contracted to buy the south half. If such facts are sufficiently established, the plaintiffs would not be innocent purchasers, and their rights would be subject to the same defense available against their grantor.

We find no merit in other assignments made.

The judgment is reversed and the cause remanded for a new trial. Costs to appellants.

PORTER, C. J., and THOMAS, J., concur.

KEETON, Justice (dissenting).

The fact that the plaintiff Paurley saw the fence now claimed by defendants to be the boundary line dividing the land would not in my opinion put the plaintiffs on inquiry as to the agreement, if there were one, between the common grantors and defendants as to what the true boundary line should be. In other words the boundary fence claimed by defendants to be the boundary would not in itself be sufficient to establish knowledge of plaintiffs that an agreement as to the boundary line existed, if it did. The fence alone would not establish the true line dividing conterminous properties.

In Campbell v. Weisbrod, 73 Idaho 82, 245 P.2d 1052, the boundary line in dispute was not only uncertain, but it could not be, and was not, determined with certainty. Hence, this court held that the agreed boundary controlled. Such is not true here. The true line in dispute in the present situation could be,...