McNeil v. Attaway , 87 Ariz. 103 ( 1960 )

UDALL, Justice.

This is an appeal by J. F. McNeil and Emma L. McNeil, his wife (hereinafter called plaintiffs), from a judgment in favor of defendants decreeing that plaintiffs take nothing in their action to quiet title and that their complaint be dismissed, and from the court’s order denying a motion for new trial.

The Essential facts — controlling in a determination of this appeal — are not in dispute and may be succinctly summarized as follows: On January 13, 1948, Frank A. Carney, et ux. by warranty deed acquired title to a 20-acre tract described as the

“East half of the Northwest quarter of the Southeast quarter of section nineteen, Township one (1) North, Range five (5) East, G. & S. R. B. & M.”

{Note: The deed was given subject to various easements and reservations set forth therein — none of which are material to the issues in the instant suit.)

The northern boundary of the tract fronts the main highway between Tempe and Mesa, known as “The Apache Trail”. At the time the land was purchased by Carney it was unimproved acreage used for growing crops. The Nace Drive-in-Theatre property adjoined it on the East, and tracts owned by Mendoza and Cota (the former’s son-in-law) adjoined it on the West. There were then fences on three sides, i. é., North, East, and West. Apparently, without a survey being made, parties had previously erected the East and West fences referred to, supra.

The Carneys were not averse to “making a profit” on their land investment, and hence very shortly after acquiring the tract in question — and without having fenced or placed any other improvements thereon —they listed the property for sale with a realty firm with instructions to offer it for sale in four strips, each to contain a 165-foot frontage on the main highway and thence running to the Southern Pacific Railway Company’s right of way on the South. Each tract would thus contain approximately five acres.

Such tracts were sold by the real estate salesman and deeded by Carney in the following order. (We shall use the numbering as testified to by the various witnesses and as shown on plats in evidence.)

Tract No. 1

“The West 165 feet * * *” was sold to plaintiffs (McNeil), recorded deed of conveyance being dated January 12, 1949. This tract, which adjoins the MendozaCota lands to the West, is not embraced in the instant suit and no reference is made to it either in the complaint or judgment.

Tract No. 2 (The land involved in this lawsuit)

Specifically described as:

“The East 165 feet of the West 330 feet, of the East half of the Northwest quarter of the Southeast quarter of section Nineteen (19) * * (Township and Range, plus easements and reservations as shown in the grantor’s deed, supra)

was sold to plaintiffs, deed of conveyance dated October 11, 1949.

Tract No. 3

“The East 165 feet * * * ” strip was sold to Charles Nealy, and he later conveyed to a Mr. Cameron. This tract adjoins the Nace Drive-in-Theatre lands on the East. This area is not involved in any way in the instant suit.

Tract No. 4

“The East half of the Northwest quarter of the Southeast quarter of Section Nineteen (19), Township One (1) North, Range Five (5) East, of the Gila and Salt River Base and Meridian, Maricopa County, Arizona; * * * * Except the East 165 feet; and Except the West 330 feet”

was sold to defendants W. C. Attaway, his sister and brother; later they conveyed to defendants Webber Mackey, et ux., who in turn leased a portion of the tract to defendant Blakely Oil Co., Inc., for the operation of a service station. See, Mackey v. Blakely Oil, 77 Ariz. 169, 268 P.2d 674, for a recitation of their interests. Insofar as this appeal is concerned all of the parties just referred to (who are the appellees-defendants) stand in the shoes of the Attaways and they shall hereafter be referred to merely as defendants. This tract is not directly involved in the instant litigation.

In passing it should be noted that neither Carney (the common grantor) nor any of the purchasers of the four tracts, supra, at that time went to the trouble or expense of having the lands purchased by them surveyed to establish the lines specifically called for in their deeds; had they done so all of the present difficulties could have been avoided. The whole trouble now arises from the fact that the Northeast corner of the East boundary fence of the MendozaCota property lies approximately 16Vá feet west of the true boundary line thereof, and in the beginning a stake there was erroneously assumed by the salesman to be the correct starting point for the first working measurements. Carney, in connection with the four sales, did not personally go onto the property to show the parties the boundaries of the lands being purchased by them.

A dispute later arose between plaintiffs and defendants as to the true boundary line between tracts numbered 2 and 4, supra. This caused each of the parties, in the year 1952, to have a separate survey made of their properties by the competent civil engineering firm of F. N. Holmquist. The system followed by the engineer was that set forth in the Manual of Surveying used by the United States General Land Office. Established government corners were found to have been previously monumented at the northeast, the southeast and the southwest corners of the quarter section in which these lands lie. Therefore, no difficulty was experienced by the engineer in surveying out and platting the land called for in their respective deeds covering said tracts. See, 26 C.J.S. Deeds § 30-a. In establishing the common boundary line between tracts 2 and 4, supra, it was disclosed that defendants in the northwest corner of their purported holdings were encroaching — with service station facilities — a distance of approximately 16^ feet in width over on to' plaintiffs’ land in tract 2, which encroachment extended to a depth of approximately 150 feet. Incidentally the survey showed that defendants’ tract 4 — following the description set out in the deed — actually had a frontage of 165.08 feet on the north. Engineer Wier, of the Holmquist firm, testified without contradiction that there was not a single fence in the area on the lines called for in the various deeds.

Fortified with this survey, the plaintiffs first made demand — under the provisions of A.R.S. § 12-1103 — that defendants execute a quit claim deed to the disputed strip, and when this was refused they filed, on April 30, 1953, a complaint against defendants to quiet their title to the lands described in tract No. 2, supra. In a second cause of action they prayed for immediate possession thereof, costs and attorney’s fees, plus a reasonable sum as rental for their property then being used and possessed by defendants. Later a supplemental amended complaint was filed naming as a defendant the Blakely Oil Co., Inc., which corporate entity had previously intervened in the case. Defendants answered and by counterclaim asked that title to the disputed strip be quieted in them, or in the alternative for reformation of the instruments of title.

After a trial to the court, sitting without a jury, the court expressed regret that he did not have the common grantor and other parties owning land in the area before him as parties to the suit so that he might reform all of their deeds. Nevertheless judgment was entered dismissing plaintiffs’ complaint, establishing a dog-legged division line between the properties of the parties hereto, and entering judgment on the counterclaim in favor of defendants, quieting their title to the disputed strip of plaintiffs’ lands on the basis of the new boundary line established by the decree.

The assignments of error are to the effect that the judgment (a) is not supported by competent evidence, (b) is contrary to law, and (c) the court was without jurisdiction to establish by judicial fiat a common boundary line between the properties of the parties.

The basic legal issue presented by this appeal is whether the judgment is legally reconcilable with the crucial facts, referred to in the motion for judgment made by plaintiffs’ counsel at the close of all oi the-evidence, viz.:

“The evidence is uncontradicted that the boundary lines, the government quarter section corners, were known to exist, that they were not obliterated or destroyed. The testimony further shows that the deeds which conveyed the property to Mr. McNeil are unambiguous, the physical survey made by competent surveyors shows beyond a doubt that the property as described in parcel No. 2 is being encroached upon by parcel No. 4 approximately I6Y2 feet.”

For the reasons hereinafter stated, it is our considered opinion that the trial court erred in not granting' said motion.

Before proceeding to a detailed determination of the merits, it' might be helpful to point out some things which are not involved in this suit. This is not an action to quiet title to land acquired by adverse possession, for less than four years elapsed from the sale by Carney of the four parcels until the date the quiet title action was filed. Neither is this a proceeding to conform a deed to an agreed boundary line, since the parties herein admittedly never arrived at an express agreement as to the line dividing their properties; furthermore; there is no privity of contract between them upon which such an action could be based. For the same reason — lack of privity of contract — this is not properly a suit to reform a deed or deeds, as will be shown, infra. Nor is this a case where the true line — called for in the deeds — is doubtful or uncertain.

The trial lasted the better part of a week, and the reporter’s transcript of the proceedings covers 444 pages. In our opinion the evidence ranged “far afield”, much of it being wholly irrelevant and immaterial to the real issue presented. We are unable to perceive — as a matter of law — how boundary or fence lines of Mendoza-Cota to the West, or those of the Nace property to the East, or any other lines except that affecting lots 2 and 4, have any bearing on our problem. Certainly such evidence could only have been offered for the purpose of varying the express terms of the recorded deeds to the property here involved, i. e., to show that the clear language of those deeds did not accurately describe the property conveyed. Plaintiffs’ objections to this type of evidence — based on its irrelevance and on the fact that it was in violation of the parol evidence rule — were overruled.

The parol evidence rule, briefly stated, is a prohibition against the admission of extrinsic evidence which would vary the terms of a properly executed written instrument. Cashion v. Bank of Arizona, 30 Ariz. 172, 245 P. 360. We have held that this is a doctrine of substantive law, not merely an exclusionary rule of evidence. Diamond v. Chiate, 81 Ariz. 86, 300 P.2d 583; City of Tucson v. Koerber, 82 Ariz. 347, 313 P.2d 411; Carrillo v. Taylor, 81 Ariz. 14, 299 P.2d 188.

In spite of the parol evidence rule, appellees contend that the “understanding” of these parties based on “visual inspection” as to the boundary lines must govern, even though the alleged understanding would contradict the clear descriptions contained in the deeds. We are aware of no exception to the rule which would justify such a conclusion.

Parol evidence, in a situation such as this, is allowed solely for the purpose of resolving ambiguities in written instruments. Although this is generally considered an exception to the parol evidence rule, analytically it is not such, since evidence admitted for this purpose does not vary the terms of the instrument, but rather it aids the court in the proper interpretation of those terms. Here, however, no ambiguity exists. The description in a deed of the property conveyed thereby is considered ambiguous and subject to construction only if it is not possible to relate the description to the land without inconsistency. Gray v. King, Tex.Civ.App., 227 S. W.2d 872. Extrinsic evidence is admitted to resolve ambiguities, not to create them.

Parol evidence is also admitted in an action to reform a written instrument, for the purpose of proving the content of the pre-existing express agreement of the parties to the instrument. See, Berger v. Bhend, 79 Ariz. 173, 285 P.2d 751. Proof of such anterior agreement is essential in a reformation action, since the purpose of such action is to conform the instrument to the actual contract negotiated by the parties. In a suit to reform a written instrument a clear and convincing showing of the real agreement of the parties thereto is a requisite. Corn v. Branche, 74 Ariz. 356, 249 P.2d 537; Davis v. Kleindienst, 64 Ariz. 251, 169 P.2d 78; Bailard v. Marden, 36 Cal.2d 703, 227 P.2d 10. Reformation is not — and cannot be — involved in this case, since the parties herein'have never entered into any express or implied agreement which could be reformed. See 45 Am.Jur., Reformation of Instruments, sections 45, 46, and 49; 76 C.J.S. Reformation of Instruments § 18.

Berger v. Bhend, supra, so strongly relied upon by defendants involved a prayer for reformation of a deed to conform to the parties’ understanding that a certain ditch running between their properties had —for some fifty years — constituted the true boundary line. In that case we reversed the trial court’s judgment denying reformation, since we found no evidence to support the trial court finding that “There was no expressly agreed boundary line.” 79 Ariz. 180, 285 P.2d 756.

We recognize that when, as in Berger v. Bhend, a boundary line is actually agreed upon by adjoining landowners, and when — as there — all necessary parties were joined in the suit, a deed may be reformed to conform to the true intention of the parties. However, that is not the case here. At the time of the conveyances from Carney to McNeil and to Attaway this was an open field; there was nothing on the land to indicate any boundary line other than that described in the deeds. There was no physical feature which could have been agreed upon by the parties to establish the disputed line. Under such circumstances the clear and unambiguous language of the deed must govern. See 11 C.J.S. Boundaries § 74.

There is a wealth of authority for the proposition that the description of property as set forth in “the call of the deed” is controlling. Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 276 P. 1017; Buie v. Miller, Tex.Civ.App., 216 S.W. 630; Frost Lumber Industries of Texas v. Brantley, Tex.Civ.App., 109 S.W.2d 999; Oliver v. Oliver, 187 Ala. 340, 65 So. 373; Hirsch v. Fisher, 278 Mass. 492, 180 N.E. 230; Daniel v. Tallassee Power Co., 204 N.C. 274, 168 S.E. 217; Peavey v. Moran, 256 Mass. 311, 152 N.E. 360; Spencer v. Pierce, 172 Ark. 108, 287 S.W. 1019; Wilson v. Cooper, 256 Ala. 184, 54 So.2d 286; Krick v. Thompson, 349 Mo. 488, 162 S.W.2d 240. See also 26 C.J.S. Deeds § 100a.

A few quotations from the cases cited above will indicate the emphasis which courts in other jurisdictions have placed upon this point. In the Joerger case, supra, the California court, dealing with a similar boundary dispute, said:

The Texas court, in the Frost Lumber Industries case, supra, said (109 S.W.2d at page 1001) :

“ * * * Parol evidence cannot make a deed convey land that it does not purport to convey, nor prevent it from conveying that which it does clearly purport to convey. That would be to contradict or vary the writing. * * ;Jc »

and in Buie v. Miller, supra (216 S.W. at page 633):

“It is well settled that nothing passes by deed except what is described in it, whatever the intention of the parties may have been.

“While parol evidence if often admissible to ascertain what lands are embraced in the description, such evidence cannot make the deed operate upon land not embraced in the descrip-' tive words. * * * ”

In the Oliver case, supra (65 So. at page 375), the Alabama Supreme Court said:

“Plaintiff’s theory of the case seems to be that any recognition by former' owners of the two tracts of a ‘made line’, wherever it might be, was binding upon them, although their respective deeds and titles were based on the lines of the government survey, and regardless of the absence of an adverse possession up to such line.

“This is not the law, for recognition by adjoining owners of a false line as the boundary between them is without effect, unless the party claiming beyond the true line also holds hostile possession up to the false line until the bar of the statute , is complete. * * * ”

Chief Justice Rugg, speaking for the Massachusetts Supreme Judicial Court in Hirsch v. Fisher, supra, wrote (180 N.E. at page 231):

“The general rule is settled and familiar that, when the description of granted premises in a deed is clear, extrinsic evidence is not admissible to-control or modify it. It is only when: such description is uncertain through latent ambiguities, either in the meaning of the words or in their application-to the face of the earth, that resort may be had to such evidence to resolve existing obscurities. * * * ”

And finally, quoting the Supreme Court of North Carolina in the Daniel case, supra (168 S.E. at page 219) :

“ * * * Parol evidence is not admissible ‘to fit the description to the thing,’ when the calls in a deed are unambiguous and the lines sought to be established differ entirely from those in the deeds.”

In the instant case the lower court erred not only in admitting evidence intended to vary the unambiguous terms of the deeds, but also in attempting to rewrite the descriptions in those deeds in terms never agreed upon by the parties thereto. In Salsbury v. Oliphant, 216 Ark. 190, 225 S. W.2d 329, where the trial court had, by decree, set boundary lines never envisioned by the landowners, the Arkansas Court said:

"We cannot approve the trial court’s procedure in fixing the boundary line upon equitable considerations rather than upon a surveyor’s measurements. In matters affecting the title to land it is of the first importance that the law should achieve the greatest possible degree of certainty — a goal that can hardly be attained if boundaries are to depend upon the conceptions of equity held by the various courts. * * * ” 225 S.W.2d 329, 330.

We agree with this statement and hold that the court below erred in departing from the unambiguous descriptions contained in the deeds. It would be most dangerous to the stability of land titles to hold otherwise.

Judgment reversed and cause remanded with instructions to enter judgment as prayed for in the supplemental amended complaint, i. e., quiet .title in the plaintiffs in conformity with their deed; fix a reasonable sum as rental for the property encroached upon by defendants and for an attorney’s fee and costs. Also with directions to determine the cross-complaint of Blakely Oil Co., Inc. against the other named defendants.

Judgment reversed with directions.

STRUCKMEYER, JOHNSON and BERNSTEIN, JJ., concur.