Jensen v. Miller

570 P.2d 375 (1977)

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Nature of the Case

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Facts

The parties contracted for sale of land by P to D. P showed D the land and, in particular, pointed out as the eastern boundary of the land to be sold a line which had been brush-cut and marked by a surveyor hired by P for this purpose. An earnest money agreement preceded the making of the land-sale contract. When the title company and the county assessor's office raised questions as to the description of the land contained in the earnest money agreement, P assured D that the brush line was the correct boundary between their respective parcels. P and D made a land-sale contract, and when D had performed thereunder, P executed and delivered to them a warranty deed which contained a legal description that placed P's eastern boundary line about 67 feet west of the brush line. This was due to an error made by P's surveyor some five years prior to the sale. That error was unknown to any of the parties at that time. From 1969 to 1973, D with P's 'encouragement and assistance,' made improvements in the disputed strip. The error in the original survey was not discovered until a new survey was made in 1973. P sued D to quiet title. D counterclaimed for reformation. The trial court found that considering the oral testimony and the earnest money agreement description, one in light of the other, the parties intended the brush line to be the eastern boundary line of the land sold. It further found that there was a mutual, material mistake, that Ds were not grossly negligent in making such a mistake, and did so in reliance upon P's representations, and that such reliance was justified. The court awarded attorney fees as well. P appealed. P claims that the trial court erred in reforming the legal description of the land in the contract and deed, and, in awarding D attorney fees.