Roberts v. Hummel

• Decision Date: 29 April 1952
• Docket Number: No. 3689,3689
• Parties: ROBERTS v. HUMMEL et al.
• Court: Nevada Supreme Court

Page 248

243 P.2d 248

69 Nev. 154

ROBERTS v. HUMMEL et al.

No. 3689.

Supreme Court of Nevada.

April 29, 1952.

Morley Griswold, George L. Vargas, Reno, and James A. Callahan, Winnemucca, for appellant.

Howard E. Browne, Reno, for respondents Fred C. Hummel and Pearl S. Hummel.

Donald M. Leighton, Winnemucca, for respondents Leslie McKernan and Laura F. McKernan.

EATHER, Justice.

Appellant secured a written option to buy from respondents, Fred C. Hummel and Pearl S. Hummel, his wife, a ranch property in Nevada with personalty thereon. When he attempted to exercise the option, the Hummels declined to convey and he filed in the court below a complaint for specific performance. Later he amended the complaint to include Leslie McKernan and Laura F. McKernan, his wife, as parties defendant because they had alleged some rights in at least part of the property covered by the option. On demurrer, the court below declined to decree specific performance, on the ground of indefiniteness in the description of the property. Thereupon plaintiff filed, with leave of court, an amended complaint wherein he set forth an alleged true description of the property covered by the oral agreement of the parties and he averred that a somewhat different description had been inserted in the option because of mutual mistake, or possibly fraud on the part of the Hummels, thus resulting in a document which did not reflect the true agreement of the parties. He prayed that the instrument be reformed and, as so reformed, specifically enforced. When the lower court, again on demurrer, denied plaintiff the relief he sought, he filed this appeal.

The second amended complaint avers: That the parties to the option negotiated concerning the property at the home of the Hummels on the ranch and that plaintiff at that time prepared the option after a meeting of the minds of the parties concerning subject matter and terms; that plaintiff requested from the Hummels their deeds so he could insert descriptions in the option; that the Hummels searched for the deeds but could not find them. The complaint also avers that the Hummels offered to plaintiff their tax statements and that the description in the written and executed option was prepared from those tax statements, in the belief by all persons present that such description comprised all the property which was the subject of the oral agreement that had been reached at the end of their negotiations, which property they knew and referred to as the 'Trout Creek Ranch.' Plaintiff avers that he relied upon those tax statements. The complaint alleges, in the alternative, that if the Hummels knew that the tax statements they tendered to plaintiff did not contain a full and correct description of the Trout Creek Ranch, the Hummels were guilty of fraud. Plaintiff sought reformation on the ground of mutual mistake, or fraud, so that the description would conform to a new description of the Trout Creek Ranch which plaintiff discovered later and which he then set forth in the complaint as the true description.

Respondents contend that the case is under the statute of frauds. In the case of Lane v. Neifert, 240 Mich. 475, 215 N.W. 302, 303, the court quoted from 34 Cyc. 927, the following as the rule:

'Where courts have full equity jurisdiction, the fact that a contract specified in the instrument to be reformed is within the statute of frauds is of itself no sufficient reason to refuse to reform when the parties thereto intended to comply with the requirements, but were prevented from so doing through fraud, accident, or mistake.'

Then the court went on to state:

'* * * we can see no reason why a court of equity, empowered to reform a deed or mortgage, may not, under the proofs here presented, reform and grant specific performance of this contract. By so doing, we do not decree performance of an oral contract. The contract as made by the parties is in writing. As reformed it is still a written contract, made so by the decree of the court.'

That language has full application to the assertion of mutual mistake which appears in the complaint in the case at bar. Concerning the alternative allegation of fraud, this court has already expressed its attitude, in the case of Wainwright v. Dunseath, 46 Nev. 361, 211 P. 1104, 1106, where we said:

'Nothing is better settled than that the true construction of the statute of frauds does not exclude the enforcement of parol agreements respecting the sale of lands in cases of fraud; for as it has been emphatically said, that would be to make a statute purposely made to prevent fraud, the veriest instrument of fraud; and the same rule governs in case of mistake as of fraud. * * *

'We are satisfied that the great weight of authority is in accord with our views, that the statute of frauds has no application in a case of this kind.'

It cannot be questioned at this late day that a court with equity powers (the District Courts of this state have such powers) may reform a written instrument where it appears that there has been fraud, accident or mistake which has brought about a writing not truly representing the actual agreement of the parties. 45 Am.Jur, p. 604; 53 C.J.S., Limitations of Actions, § 22, p. 958. This court has recognized the rule in Ray v. Robertson, 55 Nev. 397, 36 P.2d 76, where we said:

'The substance of the complaint is that the misdescription of the property contained in the contract was attributable to the mutual mistake of the parties. * * *

'* * * if it be clearly shown that * * * such written contract is untrue and misrepresents or misstates their real agreement and intention as made and understood by both parties, in some essential particular, then such contract is a mistaken one, and such mistake may be corrected in a court of equity, in respect to such particular error.'

In the Wainwright case, supra, we said:

'Irrespective of the statute of frauds, courts of equity have the power to order the reformation of deeds, contracts, and other instruments, when, through mistake of the parties thereto, or through the fraud of one of the parties, or unconscionable conduct amounting to fraud, such instrument does not contain the real terms of the contract between them. * * *'

Respondents argue that the description in the option is not sufficiently certain to permit specific performance. We are of opinion that the description in the option itself is adequate to identify what the parties were dealing with and it is such that a court could readily permit evidence to make the boundaries more definite and certain. A time-honored axiom of law, still very much enforced, states that whatever can be made certain, courts will consider to be certain; if it is possible to make a description certain by using the guideposts given in the writing, the court will construe the written instrument and the extrinsic evidence to be one instrument so as to effectuate the intention of the parties.

Here the contract bears the heading in the words: 'Option for the Sale of the Trout Creek Ranch.' It contains also these words: 'Together with any other deeded land known to be a part of the Trout Creek Ranch located approximately 17 miles north of Jungo.' It places the ranch in Humboldt County, Nevada. In our opinion, that is a sufficient reference to the subject matter of the agreement of the parties to enable it to be located and identified, and which will permit evidence of correct quantity and boundaries for the purpose of specific performance. We adhere to the rule stated in Merchant v. Marshfield Co., 95 Or. 439, 188 P. 174, 176;

'It is well settled by the authorities that if the parties who were conveying had known a particular tract by a name which they had adopted for that tract, a deed to be property by that name is a good description, and extraneous evidence may be invoked to show the fact that they had so known and designated the property among themselves, and therefore that they intended to convey the property in question by that name.

'In Wharton on Evidence, vol. 2, § 943, it is said:

"So again, to take a familiar illustration, if an estate be conveyed by the designation of Blackacre, parol evidence is receivable to show what property is known by that name.'

'In Baucum v. George, 65 Ala. 259, 267, the only description of the premises found in the deed was the 'Douglas gold mine,' and...