in a claim for reformation of a deed, stating: “ ‘[W]hen the intention ... of a certain person at a particular time ... is material to the issues under trial, evidence of such person’s declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule.’ ”
How later courts described this case
- in a claim for reformation of a deed, stating: “ ‘[W]hen the intention ... of a certain person at a particular time ... is material to the issues under trial, evidence of such person’s declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule.’ ”
- "[W]e are required to determine whether within a rather restricted zone the evidence is sufficient to satisfy us that the trial judge could ... reasonably find that the evidence was both quantitatively and qualitatively sufficient to be clear and convincing."
- "[Wle are required to determine whether within a rather restricted zone the evidence is sufficient to satisfy us that the trial judge could ... reasonably find that the evidence was both quantitatively and qualitatively sufficient to be clear and convincing."
Written by the judges who cited it.
The opinion
*445 PRATT, Chief Justice
(dissenting).
The reformation which was directed, changed the front and rear of the property covered by the contract from 4914 feet wide to 75 feet wide. The description of the property before reformation is as follows: “Commencing at the Southwest corner of Lot 3, Block 61, Plat ‘C’, Salt Lake City Survey, and running thence East 491/2 feet; thence North 115 feet; to an alley; thence West along the South side of said Alley 491/2 feet; thence South 115 feet to the place of beginning.”
This small plat will ilústrate the relative positions of the strips in controversy:
An earnest money receipt involved in the case describes the property as “656 — 658 West North Temple” in Salt Lake City. These numbers are found on a duplex that sits upon the 491/4 foot strip. The real estate contract also refers to the property by those numbers but includes the words “more particularly described as follows,” and this is followed by the description quoted above. Furthermore, in an effort to clear the title as to names in the abstract, Catherine Jensen signed an affidavit reciting the above 491/4 foot description.
Defendant claims there was no mistake, and claims that title came to deceased in two separate tracts; one, the 49 V4 foot strip in 1930 from a Catherine Hardy, the other, the 251/4 foot strip, in 1939 from a Pehr J. S. Van Ehrenheim— and that Cathrine Jensen in agreeing to sell to plaintiffs was dealing with the 491/4 foot strip only. Each of two *446 abstracts introduced in evidence show that until 1912 the two strips of property were carried as one strip 75 foot frontage and 115 feet in depth. In 1912 this Mr. Ehren-heim who then owned both strips, under a unit description of 75 foot frontage, conveyed 49% feet away. Thereafter the strips were carried through various transfers as two separate strips of 49% and 25%.feet respectively.
The 25% foot strip lies between the 49% foot strip and property owned and operated by plaintiffs as an auto court; and, is the property immediately adjacent to that court on the west.
Let me first give a brief history of the transactions of the parties without regard to the merit of the case. As I read that history, it is this:
A Mr. Dowell, a real estate agent, while visiting Mr. Sine on other business was informed by him that they, the Sines, were interested in buying the property west of their motor court (auto court on the plat above) — Dowell expressed it this way: That Sine said “next to my property”— so that he, Sine, could square his property off. Dowell, acting, as he told Mrs. Jensen, on behalf of Mr. Sine, contacted Mrs. Jensen about the property to see if she wished to sell it. He testified to having asked Mrs. Jensen this: “I understand you own some property on West North Temple adjoining the Bishop’s Auto Court?” She said, “That is right.” I said, “is it for sale ?” She said, “Yes, I’ll sell it.” I said, “What would you ask for it? What would you take including the commission?” She said, “I want $8,500.” I said, “I can’t get $8,500. I can get you $8,000. I am authorized to buy it for $8,000.” She said, “Who wants to buy it ?” At this conversation, according to Mrs. Wheeler, a daughter of Mrs. Jensen, who incidentally was not mentioned in her will, Dowell referred to the property as 656 and 658 on West North Temple. These numbers, as stated above, are the numbers of the duplex on the 49% foot strip. *447 After conversations with Mr. Sine and with Mrs. Jensen, Dowell prepared the earnest money receipt referring to the property by those numbers. He also had the uniform real estate contract and later the affidavit to clear names prepared, each of which describes the 49% foot strip. This description was taken from the abstract covering that piece. The Sines signed the receipt and the contract before Mrs. Jensen did. The affidavit was signed by Mrs. Jensen after counsel for the Sines expressed some doubt as to the names. This was after the contract was signed. As evidence of Mrs. Jensen’s state of mind as to property sold, testimony was introduced that she spoke to her daughters of having retained the 25% feet; that she suggested a hot dog stand be placed upon it; and that she suggested to her husband that he try and sell it to the Sines. It was when he broached to the Sines the question of buying it that they claimed to have learned that it was not included in the contract. There was no obvious division line between the 49% foot strip and the 25% strip. It might be reasoned that the hedge in front of the 49% foot strip, the roots of which ended approximately one foot and a tenth east of the dividing line, and the branches a few inches east of that line, and a sewer cleanout on the 25% foot strip about 1.3 feet east of the line, indicate a division line. The 25% foot strip was used for parking purposes by the tenants of the duplex. There were, at times, rubbish and old auto parts on that strip. There was a clothes line extending over it and an old shed upon it for a time. Some of these facts however are in controversy; particularly those as to the shed and clothes line.
After the Sines took over, they cleaned up the premises, including the 25% foot strip and collected the rents from the duplex. The 25% foot strip was again used for parking purposes. Mrs. Jensen lived in another part of the City, quite some distance from the property in question. She paid the taxes on the 25% foot strip after the contract was *448 entered into. The contract called for the buyer to pay the taxes on the property purchased.
When the transaction was about ready for consummation, the abstract covering the 49 y% foot strip was submitted to counsel for the Sines for their opinion as to the merit of the title; and they rendered a favorable opinion. It was their opinion that led to the affidavit identifying names, signed by Mrs. Jensen. It does not appear, however, that anyone dealing with the property for the Sines gave any conscious thought to the question of the width of the front of the lot being purchased. Throughout the entire transaction the Sines never had any personal contact with Mrs. Jensen. The real estate agent while on the witness stand admitted that he was at fault. The Sines signed the instruments without examining them with any degree of thoroughness.
The death of Mrs. Jensen is a considerable handicap in this case, as we do not have her version of the affair. The serious question in the case is that of whether or not Mrs. Jensen was laboring under any mistake of fact, when she contracted with the Sines. The burden rests upon the shoulders of the plaintiffs Sine to prove that she was. From the matters of fact I have recited above, I cannot escape the conclusion that they will support a finding that the Sines believed that the papers tendered them for signatures covered what they intended to buy — the 75 feet; but whether or not Mrs. Jensen was laboring under a similar error as to the property she was selling, is in grave doubt, especially in view of the fact that she had acquired the 75 feet as two lots of 491/4 and 251/4 feet respectively; and in view of the fact, also, that the proposition of purchase was put to her in the form of an offer as to the duplex house numbers, both orally, if Mrs. Wheeler is to be believed; and in writing as in the earnest money receipt made out by the agent for the Sines; and the real estate contract, also made out by the agent for the Sines. Mrs. Jensen’s affidavit *449 clearly limits itself to the 49% foot strip as she did not acquire the other strip from Catherine Hardy, mentioned in the affidavit as one of her immediate grantors.
In Nordfors v. Knight et ux, 90 Utah 114 , 60 P. 2d 1115 , at page 1116, this court discusses the rule applicable to reformation, and at page 116 quotes from the case of George v. Fritsch Loan & Trust Co., 69 Utah 460 , 256 P. 400, 403 , as follows [I have taken the liberty of correcting a typographical error in the Utah Reports by inserting the italicized word “of” for “to” in the quotation.] :
“The law is well settled in this and in other jurisdictions that a written contract will be reformed to express the agreement of the parties where the proof of the mistake is clear, definite, and convincing, and where the party seeking the reformation is not guilty of negligence in the execution of the contract nor of laches in making timely application for its reformation.”
Can it be said that the evidence we have recited in this case is clear, definite, and convincing of the fact that the minds of the parties met upon the inclusion of the 25% foot strip as part of the contract? What about the careless-nessness or negligence of the Sines’ agent ? To answer the first question in the affirmative, one must surmount certain obstacles that have considerable weight. One of these is the fact that the moving parties in this controversy, the plaintiffs, are the ones who, through their agent, initiated the errors of which they now complain. Had they been the victims of a mistake made by the Jensen side of the controversy through an agent of the latter, the plaintiffs would have been standing upon more solid ground. We have here a peculiar situation of an agent of the complaining party preparing the instruments in which the error could have been ascertained and corrected by a bit of careful examination of the papers involved. Another point is that the instruments conform very definitely to the claims of the defendant. Viewing the earnest money receipt and the uniform real estate contract together, it is almost as if the agent has placed the vendor in the position of saying: *450 This sale covers only 656 — 658 West North Temple, “more particularly” described as follows — then the metes and bounds description. Having produced such a meticulous limitation in the contract and also in the affidavit, is it not incumbent upon plaintiffs to present very strong proof that Mrs. Jensen, by her actions or her words, indicated that she knew that the metes and bounds description included in the contract was a mistaken description? Of course, what is clear and convincing to one may not have a similar appeal to another; but the area of justifiable differences of opinion should have some relationship to the meticulous care exercised by the careless party in his efforts to particularize in the descriptions. Here the complaining parties are very willing to confess carelessness leading to error. It is, of course, to their interest to do so; and in fairness to them, it can be said that the testimony will support a finding of carelessness and error on their part. But what of Mrs. Jensen? Did she know all the time they were leading themselves astray? Did she shrewdly encourage them along the wrong road? There is not a great deal to found any such conclusion upon. The contract price was 88,500. For 75 feet frontage this would be approximately $118 per front foot. For 49% foot frontage it would be approximately $171 per front foot. This may have some probative value in view of the fact that according to the testimony property in that vicinity had been sold for $85 per foot at an earlier time. The agent valued the property at $50 to $75 per front foot as vacant property. He thought a purchaser would tear the building down — it would probably be worth about $2,000. However no great amount of evidence was introduced on this subject of market values as of the time of the transaction.
Another fact is this: One might wonder why the Sines would want a strip of land owned by another splitting their holdings; and, in view of the prior use of the 25% foot strip as a parking place, it would be reasonable to believe that *451 the Sines wanted it for that purpose. They so used it after the purchase. There are, of course, the expressions stated by the agent as used by him in broaching the subject to Mrs. Jensen. But they are met to considerable extent by the testimony of Mrs. Wheeler, a daughter of Mrs. Jensen, as to the agent’s conversation which conforms very closely with what the agent did in making out the various papers. If the agent so conducted his conversations that the daughter thought he was talking only of 656-658 West North Temple, it is not unlikely that his statements appealed to Mrs. Jensen in a similar light. There is, of course, the question of the truthfulness of the witnesses involved, which question is much easier for the trial court to determine, than for us. However, the bad feature of the case, so far as the plaintiffs are concerned, lies in the fact that everything their agent did had a tendency to impress upon the mind Gf one in the position of vendor, as was the deceased, the belief that is now claimed on her behalf to have been hers — the belief that the parties were dealing only with the 49]4 foot strip. To hold that Mrs. Jensen really knew that they wanted all the 75 feet, in spite of the particularity of the agent’s descriptions to the contrary, is an assumption of moral turpitude on her part which hardly seems justifiable. She knew she had two pieces of property separately described. She gave the abstract of the one covered by the description of the contract and the affidavit. Can it be said with any degree of justifiableness that she deliberately withheld the other to lead them further along the path of error? The one abstract was sufficient for a careful person to catch the error. That abstract carries the property with its original 75 foot frontage and then shows the transfer of the 49 V2 foot strip. The plat of the abstract discloses a 75 foot strip. If she delivered the abstract with the hope that the error would not be discovered, she must have been gambling upon the agent’s carelessness in checking through that abstract. I do not *452 believe that the proof is such that it can be reasonably said she was acting under mistake of fact; or that she knew the error existed and allowed the mistake to pass. Certainly it is not clear and convincing, nor definite.
I do not agree with some of the other statements in the prevailing opinion; but in the interest of brevity, I shall limit dissent to the discussion above, which I think is the most important point in the case. The judgment of the lower court should be reversed.