Jensen v. Manila Corp. of the Church of Jesus Christ of Latter-Day Saints

Utah Supreme Court

Jensen v. Manila Corp. of the Church of Jesus Christ of Latter-Day Saints

565 P.2d 63, 1977 Utah LEXIS 1147

CourtUtah Supreme Court

DecidedMay 18, 1977

Docket14806

StatusPublished

Cited by20 cases

This text of 565 P.2d 63 (Jensen v. Manila Corp. of the Church of Jesus Christ of Latter-Day Saints) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jensen v. Manila Corp. of the Church of Jesus Christ of Latter-Day Saints, 565 P.2d 63, 1977 Utah LEXIS 1147 (Utah 1977).

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Opinions

[64]*64MAUGHAN, Justice:

Before us is a judgment of the District Court allowing reformation of a real estate contract. The matter was tried to the court. The judgment on appeal increased the size of the parcel to be conveyed, over that called for by the legal description. Attorney’s fees were awarded to plaintiff. We affirm. Costs to plaintiff.

It should be noted John Tinker and Genevieve L. Tinker have not joined in the appeal, consequently our action deals directly only with plaintiff Jensen, hereafter Jensen, and defendant Manila Corporation of the Church of Jesus Christ of Latter-day Saints, hereafter the Church.

In May of 1965, the two parties entered into an earnest money receipt and offer to purchase, wherein the property offered and accepted was described as an abandoned L. D. S. Chapel, approximately one-third acre of ground, Manila City, Daggett County, State of Utah. At this time the Church was record title owner of all the property between the established fence lines. Prior to the execution of this earnest money receipt, the real estate agent of the Church had shown the property to Jensen, and had represented the property for sale was the property within the existing fence lines.

After the execution of the earnest money receipt the Church executed and delivered to defendant Tinker a quit claim deed conveying the south 32 feet of the property within the fence lines. It is this thirty-two foot strip Jensen sought and was awarded by the court.

In November of 1965 a real estate contract was executed by Jensen and the Church. In this contract the realty was described, from a reference point, by definite calls, as having the dimensions of 100 X 150 feet.

Some years later a difficulty developed between Jensen and Tinker, because the Jensen’s use of the 32 foot strip. This ultimately resulted in the lawsuit here on appeal. It is Jensen’s claim he bought what he saw when the Church’s realtor exhibited the property to him. It is the Church’s claim that all it had to sell was the recorded parcel of 100 X 150 feet.

It is the Church’s contention parol evidence must be excluded if the description of the property is definite and certain. We reject this view, and hold parol evidence is admissible in an action for reformation; to show the writing did not conform to the intent of the parties.¹ See also Sine v. Harper.2 In Sine this court said:

Appellant is in error in her contention that testimony concerning the mistake was inadmissible because it varied the terms of a written contract. If such a contention could be sustained then the equitable theory of reformation of contracts would not apply to written instruments. The right to reform is given, at least in part, so as to make the written instrument express the bargain the parties previously orally agreed upon. When a writing is reformed the result is that an oral agreement is by court decree made legally effective although at variance with the writings which the parties had agreed upon as a memorial of their bargain. The principle itself modifies the parol evidence rule.

In accord is also Janke v. Beckstead.3

With reference to mistake as a ground for reformation, the general rule on the three types of mistakes, which will justify reformation of a deed or land contract, is stated in 6 Powell on Real Property, Section 903 at 268.8-.10 (1977):

The power to obtain the reformation of a written instrument exists when it can be satisfactorily proved (1) that the instrument, as made failed to conform to what both parties intended; or (2) that the claiming party was mistaken as to its actual content and the other party, knowing of this mistake, kept silent; or (3) that the claiming party was mistaken as [65]*65to actual content because of fraudulent affirmative behavior.

This case is clearly one where the written instrument failed to conform to what both parties intended.

The court found the real estate agent was acting as the agent of the Church. It was clearly shown the agent believed, and represented, the fence line was the correct boundary. The Church makes the claim it cannot be bound, as to its intent, by the representations of its agent. We do not agree. A representation by a real estate agent as to quantity of land, or boundary lines, is generally held to be binding on the principal. This court so held in Janke, supra. See also 58 A.L.R.2d 74.

The Church also raises the claim of laches, and says it has been prejudiced because plaintiff unreasonably delayed bringing the action. The court found plaintiff to have been continuously in possession of the disputed property. The claim of laches is adequately answered in Tapler v. Frey.⁴ There the court rejected such a claim and said:

Plaintiffs were in undisturbed possession of the premises and there was no occasion to bring their action earlier. Laches will not be imputed to one constantly and in complete possession of premises, the title to which is in controversy.

The contract provided for attorney’s fees.

15. Buyer and Seller each agree that should they default in any of the covenants or agreements contained herein, that the defaulting party shall pay all costs and expenses, including a reasonable attorney’s fee, which may arise or accrue from the enforcement of this agreement, or in obtaining the possession of the premises covered hereby, or in pursuing any remedy provided hereunder by the statutes of the State of Utah, such remedy is pursued by filing of a suit or otherwise.

Here Jensen pursued a proper remedy to obtain possession of the premises encompassed within the bargain previously agreed upon. That bargain is part of the subject matter of the contract allowing recovery of attorney fees. We do not'rewrite the contract, we merely allow the writing to be made to conform, to the contract as made.

CROCKETT, WILKINS and HALL, JJ., concur.

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[64]*64MAUGHAN, Justice:

Before us is a judgment of the District Court allowing reformation of a real estate contract. The matter was tried to the court. The judgment on appeal increased the size of the parcel to be conveyed, over that called for by the legal description. Attorney’s fees were awarded to plaintiff. We affirm. Costs to plaintiff.

It should be noted John Tinker and Genevieve L. Tinker have not joined in the appeal, consequently our action deals directly only with plaintiff Jensen, hereafter Jensen, and defendant Manila Corporation of the Church of Jesus Christ of Latter-day Saints, hereafter the Church.

In May of 1965, the two parties entered into an earnest money receipt and offer to purchase, wherein the property offered and accepted was described as an abandoned L. D. S. Chapel, approximately one-third acre of ground, Manila City, Daggett County, State of Utah. At this time the Church was record title owner of all the property between the established fence lines. Prior to the execution of this earnest money receipt, the real estate agent of the Church had shown the property to Jensen, and had represented the property for sale was the property within the existing fence lines.

After the execution of the earnest money receipt the Church executed and delivered to defendant Tinker a quit claim deed conveying the south 32 feet of the property within the fence lines. It is this thirty-two foot strip Jensen sought and was awarded by the court.

In November of 1965 a real estate contract was executed by Jensen and the Church. In this contract the realty was described, from a reference point, by definite calls, as having the dimensions of 100 X 150 feet.

Some years later a difficulty developed between Jensen and Tinker, because the Jensen’s use of the 32 foot strip. This ultimately resulted in the lawsuit here on appeal. It is Jensen’s claim he bought what he saw when the Church’s realtor exhibited the property to him. It is the Church’s claim that all it had to sell was the recorded parcel of 100 X 150 feet.

It is the Church’s contention parol evidence must be excluded if the description of the property is definite and certain. We reject this view, and hold parol evidence is admissible in an action for reformation; to show the writing did not conform to the intent of the parties.¹ See also Sine v. Harper.2 In Sine this court said:

Appellant is in error in her contention that testimony concerning the mistake was inadmissible because it varied the terms of a written contract. If such a contention could be sustained then the equitable theory of reformation of contracts would not apply to written instruments. The right to reform is given, at least in part, so as to make the written instrument express the bargain the parties previously orally agreed upon. When a writing is reformed the result is that an oral agreement is by court decree made legally effective although at variance with the writings which the parties had agreed upon as a memorial of their bargain. The principle itself modifies the parol evidence rule.

In accord is also Janke v. Beckstead.3

With reference to mistake as a ground for reformation, the general rule on the three types of mistakes, which will justify reformation of a deed or land contract, is stated in 6 Powell on Real Property, Section 903 at 268.8-.10 (1977):

The power to obtain the reformation of a written instrument exists when it can be satisfactorily proved (1) that the instrument, as made failed to conform to what both parties intended; or (2) that the claiming party was mistaken as to its actual content and the other party, knowing of this mistake, kept silent; or (3) that the claiming party was mistaken as [65]*65to actual content because of fraudulent affirmative behavior.

This case is clearly one where the written instrument failed to conform to what both parties intended.

The court found the real estate agent was acting as the agent of the Church. It was clearly shown the agent believed, and represented, the fence line was the correct boundary. The Church makes the claim it cannot be bound, as to its intent, by the representations of its agent. We do not agree. A representation by a real estate agent as to quantity of land, or boundary lines, is generally held to be binding on the principal. This court so held in Janke, supra. See also 58 A.L.R.2d 74.

The Church also raises the claim of laches, and says it has been prejudiced because plaintiff unreasonably delayed bringing the action. The court found plaintiff to have been continuously in possession of the disputed property. The claim of laches is adequately answered in Tapler v. Frey.⁴ There the court rejected such a claim and said:

Plaintiffs were in undisturbed possession of the premises and there was no occasion to bring their action earlier. Laches will not be imputed to one constantly and in complete possession of premises, the title to which is in controversy.

The contract provided for attorney’s fees.

15. Buyer and Seller each agree that should they default in any of the covenants or agreements contained herein, that the defaulting party shall pay all costs and expenses, including a reasonable attorney’s fee, which may arise or accrue from the enforcement of this agreement, or in obtaining the possession of the premises covered hereby, or in pursuing any remedy provided hereunder by the statutes of the State of Utah, such remedy is pursued by filing of a suit or otherwise.

Here Jensen pursued a proper remedy to obtain possession of the premises encompassed within the bargain previously agreed upon. That bargain is part of the subject matter of the contract allowing recovery of attorney fees. We do not'rewrite the contract, we merely allow the writing to be made to conform, to the contract as made.

CROCKETT, WILKINS and HALL, JJ., concur.

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