Bollinger v. Sigman

520 S.W.2d 710
CourtMissouri Court of Appeals
DecidedMarch 3, 1975
DocketNo. KCD 26868
StatusPublished
Cited by10 cases

This text of 520 S.W.2d 710 (Bollinger v. Sigman) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bollinger v. Sigman, 520 S.W.2d 710 (Mo. Ct. App. 1975).

Opinion

DIXON, Judge.

Plaintiffs appeal from an order of the trial court sustaining the defendants’ motion for judgment at the close of the plaintiffs’ case. Plaintiffs’ petition sought reformation of two deeds on the ground of mutual mistake. The trial court filed a written opinion containing findings of fact and conclusions of law. That opinion rests on the trial court’s finding that there was insufficient evidence to support a finding of mutual mistake as to either deed.

Of necessity, the facts are developed entirely from evidence offered by the plaintiffs and the reasonable inferences arising from that evidence.

The co-plaintiffs in the action are Mr. and Mrs. George Bollinger and their daughter and son-in-law, Mr. and Mrs. Richard Stroud. In 1956, George Bollin-ger purchased Lot 69 and Lot 70, Sterling Meadows Resurvey, Jackson County, Missouri. Lot 70 abuts and is directly north |of Lot 69; the lots face east onto Sterling Avenue. Lot 69 extended 137 feet east to west and 105 feet north to south. Mr. Bollinger built and lived in a house on Lot 70.

In 1965, Mr. Bollinger had the south 80 feet of Lot 69 surveyed and staked. He then submitted a plot plan to the City of Kansas City in order to obtain a permit to build a house on the south 80 feet of Lot 69. Having surveyed and staked the south 80 feet of Lot 69, Mr. Bollinger planted large hedges four inches north of the north boundary line of the south 80 feet of Lot 69. Bollinger thereafter used all of Lot 70 and the northern 25 feet of Lot 69 as the backyard to his house on Lot 70. He ows Resurvey, . . . The mortgagee 80 feet of Lot 69 to the Strouds for four years.

In March, 1970, the Bollingers and the Strouds entered into the first warranty deed in question. Under that deed, Bollin-ger purported to transfer to the Strouds, “Lot 69, Sterling Meadows Resurvey, . .” The Strouds lived on the property in question until August, 1971, when they transferred property by warranty deed to the defendants Sigman.

The circumstances surrounding the sale to the Sigmans are important. The Strouds listed their property for sale with Pat Frisbie, a real estate agent of the Wood Real Estate Company. On the last day of the exclusive listing with the Woods Agency, an agent of the Eugene Brown Real Estate Agency, Francis Scott, showed the property to the defendants Sig-man with the permission of Frisbie. Late that night, Scott told the Strouds that the Sigmans were interested in making an offer for the house. The Strouds signed a contract to sell the property for $28,000 on July 27, 1971. The deed was signed August 23, 1971. The deed purports to transfer to the Sigmans “Lot 69, Sterling Meadows Resurvey, . . . .” The mortgagee of the property for the Sigmans was Safety Federal Savings and Loan Association. The address of the property which Bollin-ger transferred to the Strouds and the Strouds transferred to the Sigmans is 4815 Sterling Avenue. It is undisputed that in the yard directly behind the house, there are large, bushy, thick hedges approximately ten feet tall along the northern, eastern and southern borders of the property.

Approximately eight months after he purchased the property, Mr. Sigman had a series of conversations with Mr. Bollinger; he questioned Mr. Bollinger about where the exact property lines were between their properties. When it became clear to all the parties that they could not agree where the exact property lines were, the plaintiffs filed this suit in September of 1972.

One of the grounds upon which the defendants based their motion for judgment at the close of the plaintiffs’ case was that the plaintiffs are not real parties in interest. The trial court did not specifically address itself to that issue in its findings. However, it is clear under the applicable case law that at least the plaintiffs [712]*712Stroud are real parties in interest. Robo Sales, Inc. v. McIntosh, 495 S.W.2d 420 (Mo.1973); Snider v. Miller, 352 S.W.2d 161 (Mo.App.1961); 76 C.J.S. Reformation of Instruments § 70, p. 425.

The defendants’ motion for judgment at the close of plaintiffs’ case submitted the case to the court and the court’s judgment is, on appeal, reviewed de novo with deference to the trial court’s ability to judge the credibility of the witnesses. The judgment will not be reversed unless clearly erroneous. Section 510.310 RSMo 1969, V.A.M.S.

In an action for reformation, it is not necessary to show that the parties to the instrument agreed upon any particular language to be used in the instrument; but it is sufficient- to show that they agreed to accomplish a particular object by the instrument and that such instrument, as executed, is insufficient to effectuate their intentions. Shaffer v. Dalrymple, 507 S.W.2d 65 (Mo.App.1974) ; Hoffman v. Maplewood Baptist Church, 409 S.W.2d 247 (Mo.App.1966).

As noted, the plaintiffs’ sought reformation of the deed from Bollingers to Strouds and also from Strouds to Sigmans. The trial court found there was insufficient evidence for the reformation of these deeds. The trial court was correct in holding that there could be no mutual mistake in the deed from Bollingers to Strouds. Mr. Bollinger had assisted in surveying the south 80 feet of Lot 69, and he knew the boundaries of Lot 69; he cannot be held to have been mistaken as to the land he intended to convey to his daughter and son-in-law. Affirmance as to that portion of the trial court’s judgment leaves for disposition the balance of the appeal.

On the portion of the appeal relating to plaintiffs Stroud, the issue may be simply stated. Did plaintiffs Stroud present competent evidence showing that the Sigmans intended to buy the same property which the Strouds intended to sell and was the property which they mutually intended to buy and sell the originally surveyed tract, the South 80 feet of Lot 69? The trial court found specifically that the plaintiffs presented no evidence showing that the defendants intended to purchase any real estate “other than that reflected in the real estate sales contract and warranty deed as executed and delivered.”

The. evidence is overwhelming that the Strouds, the plaintiffs, thought they owned only, and intended to sell only, the house at 4815 Sterling and the land immediately behind it as bounded by the tall hedges on the north. The plaintiffs’ evidence was that that intent embraced only the south 80 feet of Lot 69. Mrs. Stroud testified that the boundary lines for the yard was the “tall hedge” on both sides of the yard. She said that she had “no idea” that Lot 69 included 25 feet of her father’s backyard. She said that all she ever knew they owned was from “hedge to hedge.” When asked by her attorney if she knew what Lot 69 purported to be, she replied, “I just knew it was our yard, you know.” It is apparent that Mrs. Stroud knew where the exact north boundary line of the property was because she knew that the hedge had been planted four inches north of that boundary line. She testified that she thought Lot 69 was not more than 80 feet wide. She also knew that there were survey stakes “in" the front where the hedge was planted.” When Mrs.

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Bluebook (online)
520 S.W.2d 710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bollinger-v-sigman-moctapp-1975.