Radspinner v. Charlesworth

• Decision Date: 10 June 1985
• Docket Number: 10820,Nos. 10819,s. 10819
• Citation: 369 N.W.2d 109
• Parties: Richard E. RADSPINNER and Irene R. Radspinner, Plaintiffs and Appellants, v. Fay W. CHARLESWORTH and Eva Charlesworth, Defendants and Appellees. Warren CHARLESWORTH, Plaintiff and Appellee, v. Richard E. RADSPINNER and Irene R. Radspinner, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 109

369 N.W.2d 109

Richard E. RADSPINNER and Irene R. Radspinner, Plaintiffs and Appellants, v. Fay W. CHARLESWORTH and Eva Charlesworth, Defendants and Appellees.

Warren CHARLESWORTH, Plaintiff and Appellee, v. Richard E. RADSPINNER and Irene R. Radspinner, Defendants

and Appellants.

Civ. Nos. 10819, 10820.

Supreme Court of North Dakota.

June 10, 1985.

William R. Mills, of Mills & Moore, Bismarck, for appellants Richard E. Radspinner and Irene R. Radspinner.

Richard B. Baer, of Baer & Asbridge, Bismarck, for appellees Fay W. Charlesworth, Eva Charlesworth, and Warren Charlesworth.

VANDE WALLE, Justice.

Richard and Irene Radspinner appeal from an amended judgment entered by the District Court of Burleigh County on July 27, 1984. We affirm.

The Radspinners, in two separate transactions, gave a 1 1/2-acre tract of land near their home to Fay and Eva Charlesworth. The transfers were accomplished by two warranty deeds containing no restrictions or reservations. The parties also executed a mutual-access easement, each granting to the other an easement over the north 30 feet of their respective properties.

The Charlesworths had intended to build a retirement home on the property to be near their long-time friends, the Radspinners, but a dispute arose between the parties and the Charlesworths deeded the property to their son, Warren. The Radspinners brought this action against the Charlesworths in March of 1982, alleging fraud and breach of contract. The Radspinners claimed that there was an oral agreement between the parties that the Charlesworths were to sell the land back to the Radspinners if they did not build on it; that the Charlesworths were not to build on or sell a portion of the property referred to as "the park" during the Radspinners' lifetimes; and that the Radspinners were to have use of "the park." The Charlesworths deny the existence of such an agreement, but do admit that there were discussions to the effect that "the park" would not be built upon and that the families would use it as a park. Warren Charlesworth brought a separate action against the Radspinners alleging slander of title and interference with use of the property. The actions were consolidated and tried to the court without a jury.

The court held that Warren owned the disputed property in fee simple with no restrictions. The court awarded the Radspinners $100 as damages against Warren for their expense in removing brush and large stumps placed on their land by Warren when he cleared the easement property. The court dismissed the parties' other claims.

The Radspinners appealed to this court, and we vacated the judgment and remanded to the district court for further findings of fact and conclusions of law. Radspinner v. Charlesworth, 346 N.W.2d 727 (N.D.1984). On remand, the district court issued its supplemental memorandum opinion and order for amended judgment, holding that Warren owned the property in fee simple subject to the Radspinners' easement. In all other respects, the court adhered to its previous judgment. The amended judgment was entered on July 27, 1984, and the Radspinners appealed.

The following issues are raised on this appeal:

I. Were the Charlesworths liable for breaching an oral agreement regarding "the park"?

II. Should a constructive trust have been placed upon the property, requiring the Charlesworths to hold "the park" in trust for the Radspinners' lifetime use?

III. Did the trial court err in refusing to award damages for loss of trees within the access easement and in awarding only $100 for the cost of removing the brush and stumps placed upon the Radspinners' property?

I

The Radspinners assert that the court erred in refusing to enforce the alleged oral agreement between the parties regarding "the park," which they contend was part of the consideration for the conveyance.

The Charlesworths contend that the parol-evidence rule, as codified in part in Section 9-06-07, N.D.C.C., precludes enforcement of any oral agreement between the parties:

"9-06-07. Written contract supersedes oral negotiations.--The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument."

The parol-evidence rule is not a rule of evidence, but rather one of substantive law. Ell v. Ell, 295 N.W.2d 143 (N.D.1980); Gajewski v. Bratcher, 221 N.W.2d 614 (N.D.1974). Thus, evidence of oral negotiations and agreements which preceded the written contract may not be offered to vary the terms expressed in the written contract, nor may such agreements be separately enforced. See Northwestern Equipment, Inc. v. Tentis, 74 N.W.2d 832 (N.D.1956). A deed is a written contract, and is subject to the rule. Gajewski v. Bratcher, supra; Zimmer v. Bellon, 153 N.W.2d 757 (N.D.1967).

In Gajewski v. Bratcher, supra, 221 N.W.2d at 626, we discussed the application and effect of the parol-evidence rule:

"The parol evidence rule has been variously defined and has been best stated as follows:

' " ' "Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement;" * * * "all preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract * * * and 'unless fraud, accident, or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence.' " ' " ' Associated Hardware Supply Co. v. Big Wheel Distributing Company, 355 F.2d 114, 119 (3d Cir.1966), 17 A.L.R.3d 998."

The Radspinners concede that they failed to prove fraud, and there have been no allegations of accident or mistake. Therefore, the terms of the deeds may not be altered or varied by evidence of the prior oral agreement.

The Radspinners contend that the oral agreement falls within an exception to the parol-evidence rule because it constitutes part of the consideration for the deeds, and the failure of the deeds to fully recite the consideration indicates that they were not intended as a total integration of the parties' agreement. We were presented with an identical argument in Zimmer v. Bellon, supra, where the plaintiff conveyed property to the defendant by warranty deed, but later claimed that there had been a prior oral agreement between the parties that certain fixtures and a dwelling would be excepted from the conveyance. The plaintiff argued that the oral exclusion of fixtures was part of the consideration for the conveyance. Although noting that parol evidence may be admitted to prove that the actual consideration differs from that recited in the deed, we held that this exception does not permit a party to vary the express terms of the deed under the guise of showing the true consideration:

"But this exception ' * * * is never applied to the extent of permitting a party to show that the agreement was other than that set forth in the writing.' Clark v. Henderson, supra 244 N.W. [314 (1931) ] p. 316. And even more specifically, the rule of Alsterberg v. Bennett, supra, precludes, under the guise of proving the consideration for a conveyance, an adding to or a taking from the other terms of the deed.

"Examination of the evidence leads to the inescapable conclusion that here Mrs. Zimmer ostensibly, on the ground that the deed is incomplete in its statement of consideration, is endeavoring to prove something different than consideration, of which there is no indication or suggestion in the deed, and so seeks to impose other and further contractual obligations upon the defendant grantee. This was an attempt to show that the agreement of the parties was other than as set forth in the deed, and in direct contradiction thereto, by engrafting additional terms on the conveyance. It is clear from the cited authorities that, as between plaintiff Mrs. Zimmer and defendant Adam Bellon, parties to the warranty deed, testimony relating to any oral exclusion of fixtures from operation of the deed was inadmissible on trial of this case." Zimmer v. Bellon, supra, 153 N.W.2d at 762.

In this case, the deeds convey the property in fee simple to the Charlesworths. The Radspinners are attempting to vary the express terms of the deeds under the guise of showing the true consideration. This is impermissible under Section 9-06-07 and our holding in Zimmer.

We have held, in Royse v. Easter Seal Society for Crippled Children, 256 N.W.2d 542, 545 (N.D.1977), that exceptions or reservations must be clearly expressed in the deed:

"The general rule is that because a grantor is presumed to have made all the reservations or exceptions he intended to make the reservations must be clearly expressed in the deed. See 6 Powell on Real Property Sec. 892.

* * *

"We believe exceptions or exclusions of property should be set forth in the granting clause with the same prominence as the property granted, or, if placed elsewhere, should be so explicit as to leave no room for doubt. Were we to endorse anything short of this we would be encouraging practices which would lend themselves readily to fraud and deception. This we propose not to do.

* * *

"Easter Seal has attempted to show what the parties actually thought was being passed in the deed, but, of course, that sort of testimony cannot be resorted to where the language written in the deed itself is not ambiguous. We will not strain to find an ambiguity where none appears on the face of the instrument."

We conclude that the alleged oral agreement between the Radspinners and the Charlesworths was superseded by the subsequent deeds and is unenforceable.

II

The Radspinners contend that the court erred in refusing to impose a constructive trust upon "the park." They contend that, to the extent that the Charlesworths...