James and Martha Collins v. Melvin and Martha Jackson

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION II

JAMES and MARTHA COLLINS

APPELLANTS

v.

MELVIN and MARTHA JACKSON

APPELLEES

CA00-652

September 19, 2001

APPEAL FROM THE ARKANSAS COUNTY CHANCERY COURT

E-98-76

HON. F. RUSSELL ROGERS, JUDGE

AFFIRMED

James H. Collins and Martha L. Collins appeal from an order of the Arkansas County Chancery Court that granted the petition filed by appellees Melvin D. and Martha B. Jackson to reform a deed with a defective legal description and that denied the Collinses' counterclaim, which asserted that they acquired the disputed portion of land by adverse possession. On appeal, the Collinses argue that the chancellor erred in 1) failing to take into account the fact that the intent of the parties could be ascertained by the four corners of the deed and by extrinsic circumstances; 2) ignoring their claim of laches and estoppel; and 3) dismissing their adverse possession claim. We agree that the Chancellor erred in themanner in which he reformed the deed, and reverse and remand.

This case involves a parcel of land located on Highway 130 north of DeWitt. The parties own adjoining plots of land, and the Jacksons had conveyed the property involved in this action to the Collinses in 1985. It is undisputed that the deed conveying the land has a defective legal description, and the primary issue is the amount of highway frontage the deed was intended to convey. The deed in question recited that the Collinses acquired only 177 feet of highway frontage. However, the rest of the metes and bounds description indicated that 277 feet of highway frontage was required for the boundary to close and to convey one acre as recited in the deed. When the discrepancy in the deed became apparent to the Jacksons and the Collinses, the Jacksons petitioned to reform the deed to delete a southwesterly call of 115 feet so as to make the boundary running from east to west meet a point along the highway 177 feet from the beginning point, resulting in a conveyance of only approximately one-half acre in size. In their answer, the Collinses acknowledged that the legal description in the deed was defective, proposed an alternative to the legal description that would have simply changed the call along the highway from 177 feet to 277 feet, raised the affirmative defenses of laches and estoppel, and asserted in a counterclaim that they had acquired the disputed property by adverse possession.

At a hearing in chancery court, both sides agreed that the legal description in the deeds was faulty and did not "close." Melvin Jackson testified that he acquired the property in question in 1984 from DeWitt Body and Glass and sold it to the Collinses on April 22, 1985. He claimed that he understood the highway frontage to be "a hundred somethingfeet." Jackson admitted that he never knew the boundaries "completely" because he never had it surveyed. He stated that there was an old shop building on the land and that he used "probably fifty [feet]" north of the shop. According to Jackson, Velma Young owned the property surrounding the disputed parcel and maintained her yard up to about forty feet south of the boundary line the Collinses are claiming. Young, however, had moved out of her house and stopped maintaining her property, and Jackson stated that she did not live on the property within the last seven years. After the Jacksons purchased Young's abutting property two or three years before the hearing, they became aware of the problem with the deed when the Collinses had the property surveyed, and the survey placed the northern boundary in a position that provided the Collinses more than two hundred feet of frontage on Highway 130. Jackson asserted that the property line should "probably" be fifty feet north of an old shop building.

On cross-examination, Jackson claimed he did not remember showing the Collinses the boundaries when he sold them the property. Jackson stated that between the years 1985 and 1998, a junk yard and some mobile homes were on the disputed area, but he claimed he did not know who owned the trailers. He also recalled a shop operation and some wrecked cars on the property. Jackson claimed that he did not think he had acquired all of the highway frontage that the Collinses now claim when he bought the property from DeWitt Body and Glass, and while he believed that he was acquiring approximately one acre, he thought that the land ran deeper, rather than further along the highway.

James Collins testified that he bought his property from Jackson in April of 1985. Collins claimed that Jackson showed him and his wife the boundary lines of the property prior to their buying the land, and told them that the parcel was one acre. Collins stated that he put a used car lot, a machine shop, and three different mobile homes on the disputed portion of the parcel. According to Collins, the dispute arose after Jackson had purchased the adjoining property from Velma Young, and told him that his mobile home was on his property. Collins claimed he paid taxes on a one-acre parcel since he bought the property. He also claimed that he used all of the property right up to the line he was claiming and that Mrs. Young never disputed his ownership of the property. Collins stated that he moved a trailer off the property when Jackson told him that he owned the property only because he "didn't want to make waves." Collins also stated that during the time that they owned the property Mrs. Young never lived in the house on her land, but instead lived in a mobile home behind the shop, and that he mowed Mrs. Collins's yard for her.

Martha Collins confirmed that Jackson "walked" the property with her and her husband to show them the boundary lines and that they understood that Jackson was selling them an acre of land. She also testified, just as her husband had, that they operated a used car lot for a time, had placed a succession of mobile homes on the property, and had paid taxes on the land since they had purchased it.

James Wages, a friend of the Collinses, testified that he remembered when the Collinses purchased the land and confirmed that the Collinses kept mobile homes on the property, in addition to a used car lot and junk cars.

At the close of the testimony, the chancellor acknowledged that the reformation ofthe legal description proposed by the Jacksons would give the Collinses just over half an acre. Nonetheless, after taking the case under advisement, he granted the Jacksons' petition and denied the Collinses' counterclaim for adverse possession.

The Collinses first argue that the trial court erred in failing to take into account the fact that the intent of the parties could be ascertained from the four corners of the deed and also from the extrinsic circumstances. They contend that the chancellor failed to consider the intent of the parties as discernible from the four corners of the deed, particularly where the instrument recited that it was intended to convey one acre of land, and instead only focused on the language calling for 177 feet of highway frontage. They contend that under Arkansas law, deeds are to be construed strongly against the grantor and liberally in favor of the grantee, and descriptive words as to quantity are important in determining the intent of the parties. The Collinses note that the Jacksons prepared the deed and therefore the ambiguity should be resolved in their favor. Furthermore, they assert that the language in the deed stating that the instrument conveyed one acre should be given effect. Additionally, the Collinses argue that the chancellor erred in failing to consider extrinsic evidence of how the parties acted pursuant to the deed. They assert that they occupied and used the land in a manner that indicated that they believed they had acquired the disputed portion of the parcel. Finally, they also urge this court to find significant the fact that the parties actually walked the boundaries and were in agreement as to where they lay. We find their arguments persuasive.

Our review of this case is de novo. Warner v. Eslick, 239 Ark. 157, 388 S.W.2d 1(1965). When parties come to an agreement, but by fraud or mistake fail to write it down to truly reflect their contract, equity will reform the writing to make it reflect the parties' true intention. Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984). However, under Arkansas law, for equity to reform a deed, there must be clear, convincing, and decisive evidence that a mutual mistake has been made in the drawing of the instrument. Id. Although the evidence to justify a reformation for mutual mistake must be clear and convincing, it need not be undisputed. Warner v. Eslick, supra.

Here, both parties agreed that the legal description in the deed was defective and that reformation of the deed was the proper remedy. The only issue therefore was how much property was intended to be conveyed. In Irby v. Drusch, 220 Ark. 250, 247 S.W.2d 204 (1952), the supreme court discussed the three possible situations presented by a defective legal description in a deed. We find that the instant case is analogous to the situation that the court described as follows:

In a second situation there is something in the preceding calls that suggests that an error has been made. Here the courts do not woodenly say that the final call must nevertheless proceed from the point then reached to the place of beginning. Assume, for instance, that a description begins at a certain point and runs "thence west 100 feet, thence north 100 feet, thence west 100 feet, thence south 100 feet to the point of beginning." It is at once apparent that either the first or third call should have been east instead of west. No court would insist that the first three calls should be followed literally and that the final call should then proceed willy-nilly to the point of beginning, thus describing two triangular tracts in lieu of the square that was evidently intended. See, for example, Morgan v. Lewis, 29 Ky. L. Rep. 197, 92 S.W. 970, where a surveyor was able to demonstrate, by reversing the order of the calls, that an intermediate call should have been 194 poles instead of 294 poles. The court rejected the contention that in every case the last line should be run to the point of beginning, pointing out that such a rule "is undoubtedlycorrect within reasonable bounds" only.

The most logical interpretation of the legal description is the one proposed by the Collinses, that the highway frontage should have been listed as 277 feet instead of 177 feet. Moreover, both sides confirmed that the Collinses occupied the parcel of land that would have been defined by the additional one hundred feet of highway frontage, and treated it as their own. The conduct of the parties relative to the disputed area is competent evidence of the intention of the parties. Warner v. Eslick, supra. Where, as here, there was no dispute as to this fact, we agree that the chancellor erred in failing to take this conduct into account when he reformed the legal description. Consequently, we need not address the Collinses remaining arguments concerning the affirmative defenses of laches and estoppel, and adverse possession.

Reversed and remanded for entry of an order consistent with this opinion.

Hart and Pittman, JJ., agree.