Waltrip v. Cathcart, 35256

• Decision Date: 12 November 1952
• Docket Number: No. 35256,35256
• Citation: 250 P.2d 43,207 Okla. 404
• Parties: WALTRIP et al. v. CATHCART et al.
• Court: Oklahoma Supreme Court

Page 43

250 P.2d 43

207 Okla. 404

WALTRIP et al. v. CATHCART et al.

No. 35256.

Supreme Court of Oklahoma.

Nov. 12, 1952.

Syllabus by the Court.

1. Where, by mutual mistake of the parties a deed fails to convey property intended to be conveyed, a court of equity will reform the deed to make it express the true intent.

2. In order to justify a reformation of a deed the evidence must be full, clear, unequivocal, and convincing as to the mistake and its mutuality. Mere preponderance of the evidence is not enough. The proof must establish the fact to a moral certainty and take the case out of the range of reasonable controversy. Where both the mistake and its mutuality are so established, a court of equity will reform the deed to conform to the intention and real agreement of the parties.

3. A purchaser of realty is charged with notice of whatever rights persons in actual possession may have.

Wheeler & Wheeler, Tulsa, for plaintiffs in error.

Gable, Gotwals & Hays, Tulsa, for defendants in error.

BINGAMAN, Justice.

The plaintiffs in error as plaintiffs in the trial court sought to quiet title and to recover possession of a strip of land between the dwelling houses of plaintiffs and defendants, described as the south 22 1/2 feet of the north 45 feet of Lot 8, in Block 2, Rose Hill Ranch Addition, Tulsa County, Oklahoma. By cross-petition defendants sought reformation of their deed to include this strip of land and to quiet their title thereto. From a judgment reforming defendant's deeds to include all that part of said strip north of a rock wall about five or six feet north of the south line of said strip, and quieting their title thereto, the plaintiffs have appealed.

Lots 7 and 8 both front on Union Avenue, which runs along the west side of said lots. Lot 7 has 150 feet of frontage on this avenue and Lot 8 has 240. Lot 10 lies east of Lots and 7 and 8 and is 390 feet wide, which is exactly the width of Lots 7 and 8 combined. Lot 8 and the south half of Lot 10 were formerly owned by A. L. Eckleberger, and at the same time Lot 7 and the north half of Lot 10 were owned by his daughter, Lucile White. The undisputed evidence shows that during the time this property was so owned and between 1917 and 1923, Lucile White and her parents agreed to straighten the line between their respective properties and established a rock wall as such boundary line. This rock wall approximately conformed to the division line between the north half and the south half of Lot 10, and was mutually considered by the parties to be 45 feet south of the north line of Lot 8. Deeds were not exchanged between Mrs. White and her parents to conform to this agreed boundary line, but in 1923, when Mrs. White and her husband sold their property to one Frank Lang a deed conveying Lot 7 and the north half of Lot 10, was executed to Lang by the Whites and at the same time a deed was made by A. L. Eckleberger and wife to Lang to the north 45 feet of Lot 8. Neither of these deeds contained any mention of the rock wall or other boundary monument, but the undisputed evidence shows that the rock wall in question was the recognized boundary and that the parties intended to convey to Lang all of the property north of this rock wall and only that north of it.

In January, 1936, Lang sold all the property acquired by him in these lots to the defendants. He testified that he sold to them everything north of this rock wall, which he informed them was the boundary line. In executing the conveyance however, the property was described as Lot 7 and the north half of Lot 10. No reference whatever was made...