Weatherford v. WEATHERFORD

LATOURETTE, C. J.

This is a suit for specific performance of an alleged option which plaintiff Marion T. Weatherford claims was given to him by his brother, the defendant H. R. Weatherford, to purchase what is known as The Morrison Field, containing 320 acres in Gilliam county. From a decree in favor of plaintiff, defendants appeal.

It is alleged in the complaint that prior to August 31, 1948, the plaintiff, Marion T. Weatherford, and defendants, H. R. Weatherford, Frank M. Weather-ford and Barbara Athearn, brothers and sister, jointly owned the property above described; that on said date the said parties entered into an agreement whereby they mutually promised and agreed upon a division of their properties, including, the above-described parcel, owned jointly by them; that under said agreement the defendant H. R. Weatherford became sole owner of the above-described parcel, and it was further mutually promised among them that in the event either Frank M. Weatherford, H. R. Weather-ford, Marion T. Weatherford or Barbara Athearn, should decide to sell any part or all of the property distributed to any one of them under the aforementioned division, then any of the others of them would have the option to purchase the piece decided to be sold at a price comparable to any bona fide offer; that subsequently the defendant H. R. Weatherford purported to transfer his interest in said property to Edith M. Snell and David L. Lemon and Margaret S. Lemon, without giving plaintiff the privilege of exercising such option; and that said Edith M. Snell and the Lemons purchased the property with notice and knowledge of such option.

The defendants answered, and, among other things, alleged that on October 26,1948, plaintiff, by warranty deed, conveyed to defendants H. R. Weatherford and Edith M. Weatherford, his wife, said above-described property, and that by reason of the execution of such deed, plaintiff is estopped from claiming that defendant H. E. Weatherford had no right to convey said real property.

Plaintiff, by his amended reply, admits the execution of the aforesaid warranty deed, and by his first, further and affirmative amended reply, inter alia, alleges that the execution of the aforementioned deed and the granting of the option were one transaction, and that one of the considerations for the deed was the granting of the option. And, as a second affirmative amended reply,. plaintiff alleges that the exclusion and omission of the option in the aforesaid deed was a result of mutual mistake between the parties and that such mistake did not arise from the gross negligence of the plaintiff. By such reply plaintiff, in the alternative, seeks reformation of the deed.

There is no question that the plaintiff, on August 31, 1948, had an option to purchase from defendant H. E. Weatherford the property involved in this case. However, in our opinion, the decision of the case turns upon the legal effect of the warranty deed executed on October 26, 1948, by the plaintiff to defendants H. E. Weatherford and Edith M. Weatherford, his wife.

Since the execution of the warranty deed was subsequent in date to the granting of the option, in legal effect the deed extinguished the option unless it could be legally shown that one of the considerations of the deed was the granting of the option or that there was a mutual mistake in the execution of the deed, or both.

The deed recites a consideration “of the sum of Ten ($10.00) Dollars.” The legal question presented is whether or not parol or extrinsic evidence may be admitted to contradict a substantial and contractual provision of the deed só as to amplify a monetary consideration.

Section 2-406, OCLA, provides that the following presumption is deemed conclusive:

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“(B) The truth of the facts recited from the recital in a written instrument, between the parties thereto, their representatives or successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration;

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It is the law that the above consideration exemption does not apply where the grantor seeks to contradict the consideration recited in the instrument by parol or extrinsic evidence that tends to defeat the operation, or lessens the effect, of the deed, or engrafts into the instrument an additional executory or contractual consideration.

In Marks v. Twohy Bros. Co., 98 Or 514, 194 P 675, we said:

“A recital in a written instrument as to the payment of the consideration is merely in the nature of a receipt, and may be contradicted or explained by parol or extrinsic evidence, unless such contradiction would have the effect of rendering nugatory some substantial and contractual provision of a valid written instrument. In the case of a conveyance like the one under consideration from plaintiffs to the Oehoco Irrigation District, where the grantors, or one claiming under them, attempt by contradicting the consideration clause, to defeat the operation of the deed, or to lessen the force or effect thereof, or to incorporate therein a reservation of a right or interest in the property conveyed, which reservation is not enumerated in the conveyance, such parol or extrinsic evidence is inadmissible to vary, contradict, enlarge or diminish .such deed. * *' *

“The considerations recited in the conveyance in question are monetary on the one side and contractual on the other. The consideration moving from the grantee to the grantors is purely monetary. That moving from the grantors to the grantee is contractual; it is a conveyance of all the right, title, and interest of the grantors in the Table Land Ditch. If the grantors, under the guise of varying the monetary consideration, can ingraft new terms into the instrument by parol evidence, and reserve to themselves the right to the use of the Table Land Ditch during the season of 1918, they could in the same manner reserve to themselves the right to its use for a longer period of five or fifty years, or defeat the purpose of the conveyance.

“Stated in general terms, a purely money consideration, mentioned in a written instrument, which is complete upon its face, cannot be amplified by parol evidence so as to ingraft into the instrument an additional executory or contractual consideration. Where the written instrument appears to be perfect and complete, the terms of a contractual consideration cannot be contradicted or varied by parol. * * *” See Kane v. Kane, 134 Or 79, 291 P. 785; Dorsey v. Tisby, 192 Or 163, 234 P2d 557.

From the f oregoing it is clear that plaintiff would not be allowed to show by evidence aliunde the deed that the granting of the option was a part of the consideration for the execution of the deed for the simple reason that in such a case the estate granted would be lessened in that the grantee in the deed would be vested with an estate inferior to that granted by the warranty deed itself.

Nor will the plaintiff be permitted to reform the deed on the ground of mutual mistake. It is axiomatic that one who seeks the reformation of an instrument must establish, by clear, satisfactory and convincing evidence that the instrument, as executed, was the result of a mutual mistake of the parties and that the one seeking reformation must be free from gross negligence. Cohn et al. v. Duntley et al., 147 Or 176, 31 P2d 170; Eley v. Miller, 166 Or 80, 110 P2d 587; L. B. Menefee Lumber Co. v. Gamble, 119 Or 224, 242 P 628.

The evidence, without contradiction, discloses that in dividing the estate of their father the Weatherford brothers and sister met and made minutes of the meeting in which, among other things, the option was indicated. The minutes contain the following clause:

“The job of getting the deeds drawn, abstracts brought up to date and segregated, leases transferred, title to vehicles transferred, bills paid and monies collected, and the business of the partnership terminated should be done by Marion, and that it shall be completed as soon as possible.”

As regards the execution of the deed in question, plaintiff testified as follows:

“Q. Mr. Weatherford, was this agreement carried out? * * *A. Yes sir.

“Q. Whose responsibility? A. It was mine, sir.

“Q. What was done? A. The deeds were drawn up in accordance with the agreement at the meeting.

“Q. By whom were the deeds drawn? A. The deeds were drawn up by Attorney Dan McLoughlin who is located in Condon. * * *”

In this connection H. R. Weatherford testified as follows:

“Q. * * * Now, while you were in Wallowa County, did you receive through the mails a deed to your share of the property? A. Yes.

“Q. You had nothing to do with the preparation of the deed? A. No.

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“Q. Do you recall who sent you the deed? A. Marion.

“Q. Marion Weatherford? That is the plaintiff in this ease? A. Yes.

“Q. I hand you defendants’ exhibit A and ask you if that is the deed you received in the mail, from your brother, Marion? A. That is it.

“Q. And that is the deed which covers the Morrison place which is here in dispute, and the 1600 acres? A. That is right.”

From the foregoing, it appears that the plaintiff, through his attorney, prepared the deed in question and mailed the same to the defendant H. B. Weather-ford. There is not one iota of evidence that the deed was executed by mutual mistake or mistake at all. The deed was drawn and executed by plaintiff exactly as he wished it and if the option was omitted through inadvertence it was omitted through his own fault and negligence.

Beversed with instructions to dismiss the plaintiff’s complaint, without costs in either court.