*1 439 KOSKI, JEAN VELMA аnd MARY A. GOODSON Appellants, and Plaintiffs vs. SMITH, K.
CHRISTY Respondent, and
Defendant Trustee, McAVOY, T. PRESTON Respondent.
Defendant SMITH, K. CHRISTY Respondent,
Plaintiff vs. GOODSON, KOSKI, and JEAN
MARY A. VELMA KOSKI, M. J. Appellants.
Defendants 1952; 163) (Nos. 2529, 2530; April 7, Pac. 2d *4 plaintiffs appellants, For the and in case No. 2529 2530, for defendants and and in case No. upon were causes submitted the brief and also oral argument of A. Thomas and Nicholas Robert A. Bur- gess, Casper, Wyoming. both of
For respondent, the defendant and in case No. 2529 plaintiff respondent in case No. upon causes were submitted the brief and also oral argument Rawlins, Wyoming, of Robert S. Lowe of McKinney Basin, Wyoming. Thomas M. Justice; Riner,
Heard before Blume, Justice; Chief Judge. Parker, District *6 OPINION Blume, Chief Justice. controversy is, main, in these cases one gas rights
to the amount of oil and reserved the lands property here conveyed involved when the The two agreed conveyed K. Smith. to be and were con- transactions identical involve the actions actions was of these The first for trial. solidated Mary 1948, by brought A. Goodson December on plaintiffs Koski, called hereinafter and Velma Jean against Christy T. and Preston appellants, K. Smith in- McAvoy a contract and deed to cancel or construe following volving property ranсh situated Weston gas oil, County, Wyoming, and reservations therein, as follows: minerals Half of the the North South (N%); “The North Half Quarter Half of the Southeast Half the South (Nj4S^4), (2); the North Half of Two of Section (SJ4SEJ4) Quarter (11), Eleven Section (Nj4NE^) Northeast Township Range North, Sixty-six Forty-three (43) (10); <66); Half of Section Ten (W)4) West (14); Half Fourteen Section (Sy2) Section South Fifteen (15); quarter of the Northeast the Northwest Quarter (NW%NEJ4)> the East Half of the Northeast (21); Twenty-one Quarter of Section the the the (EJ4NEJ4) Quarter (W)4NWj4), Half of the Northwest West (Sy) Twenty-two (22); Half of Section South Northwest *7 Quarter Quarter of the Southwest (NW%- the The Half of South Half of SWJ4), South (Sy?Sy2) Twenty-six Twenty-three (23); (26); Section Section Quarter Twenty-seven (27); the Section Northeast of Quarter Twenty- (NEj4NE%) the Northeast Section eight (28); Half the North Half the North (N>4Nj4) Thirty-five Township Forty-four (35), (44) of Section Range Sixty-six (66), North, of West of the Sixth containing Principal Meridian, Four Thousand One Acres, less, according Twenty (4120) more or Hundred Survey thereof; the and all to Government State school land and individual land leases identified and owned by Part, approxi- under lease the Parties of the First mating Federal leases under the leases covered acres, (4000) Four Thousand which includes Grazing Taylor Act, including also Land Utilization.” allegations petition, slightly abbreviated, of the (that say are as follows: “Plaintiffs is to herein) simple property are the owners fee of the July 2,1946, they here involved. On made and executed gas Mary property an and oil lease to the to R. Allen. Y. May 5,1942, A. Goodson’s died on or about and husband operated ranch she the after that time. Preston T. McAvoy attorney. 7,1946, her On about October Christy buy property. defendant K. Smith desired to She informed to the oil and him she wanted retain gas agreed property meet him at forever. She to McAvoy following day the office of to reduce the writing. persons contract Smith took other to the day. McAvoy following office of Preston T. These persons large great were ofmen interests and of stature political experience. and and other and After influence McAvoy Smith and met in T. others the officeof Preston persons interrupted Mary these and contradicted A. talking interrup- loud and Goodson boisterous prevented tions, completely expressing plaintiff from herself, presumed language appear to dictate the agreement for the here sale land involved pretended language language that the was the exact agreed upon ranch; with K. at de- Smith her fendant, Christy Smith, K. and associates overreached plaintiff. years age, Plaintiff Goodson was then 54 widow, legal and a and was unfamiliar documents phraseology. deprived Defendant her of inde- pendent employed reg- plaintiff’s counsel and advice and attorney. necessity ular There was for her return to Upon representation her ranch. of defendant and paper agreed ranch, associates aswas at her signed agreement she for a deed on Octo- 1946, represent language ber does but it not Mary A. of her Goodson will. free No deed for the transfer of the lands was made. The entered upon provided Mary into the death of A. Goodson gas one-third the oil and and other minerals should *8 pass Christy Smith, twenty-five to years K. that after pass Christy another one-third would K. Smith leav- ing gas one-third of the oil and in the permanently lands that plaintiffs. learned Plaintiffs
and forever pretended McAvoy possession a in his T. had Preston signatures plain- pretended to bear deed which transferring premises to said purpose of tiffs for Smith; pretended deed does defendant, that K. agreement language stipulated in the not contain the prayed the court warranty Plaintiffs for a deed.” contract, not be if it should but cancel and rescind the thereof; interpret the effect cancelled that the court valid; that Allen declared be that the lease to R. V. be delivering enjoined McAvoy from the defendant be Mary Goodson, deed; de- pretended plaintiff, A. gas under said an interest in the oil creed to retain lands forever. allega- denying the
Christy K. filed an answer Smith setting generally petition forth that tions of the on made and executed Octo- the contract for a deed was 8,1946, property, which was deed for the ber a agreement, conformity subse- was executed January 4,1947. quently on McAvoy defendant, in simi- Preston T. answered allegations warranty language including that a lar January premises 4. The for the wаs executed on deed reply plain- deed was denied in the execution tiffs. January 8, 1949, Christy K.
Thereafter on Smith brought against Mary an A. Velma action Goodson Koski, husband, Jean Koski and M. J. latter’s sub- allegations stantially setting forth the which he had in the answers to the first action and also mentioned money paid portion asked for copyA under the R. V. Allen lease. of the warranty forth, copy deed was set and a of the agreement, deed, pursuant executed to the was attached. prayed the court as follows: He Prays “Wherefore, the Plaintiff that this Court make rights respective parties a declaration of the *9 lands; and to decreed that the said that it be ordered and plaintiff Warranty that to have said Deed so is entitled may place record; he that Plaintiff is en- the same titled to have the of Title for examination Abstracts and performance full in the have accordance with parties of the the defendants be required Warranty to deliver said executed Deed to the Plaintiff with said Abstracts of Title to the lands cov- thereby attorneys ered for examination Plaintiff’s attorneys and when said have said Plaintiff’s examined title and if the found title be merchantable that then payment Eight and in that event the order Court the ($8,500.00) Thousand Five Hundred Dollars in the hands the Clerk of this Court said to the defendants plaintiff and that have and from the de- recover money money fendants sum of sum such such paid amount as shall have been the former * ** plaintiff justly lessees of said lands which the plaintiff entitled to receive and that the have other such upon may further and different relief as the trial hereof just proper and recover costs of herein his suit expanded.” Mary
The answer of A. Goodson and her associates substantially allegations contains the same con- as are tained in the action which she and Velma Jean Koski brought against Christy K. Smith and Preston T. Mc- Avoy stating among things other that the deed spurious theretofore mentioned is a invention and way binding upon in no them.
The property evidence shows involved herein Christy for sale on 7, and before October 1946. K. uncle, Smith Christensen, and his John went to the question ranch in 7,1946, about noon October and it was agreed then рurchase price property $35,000.00. parties should be were to meet McAvoy officeof Preston T. Newcastle, Wyoming, at on 8,1946, October in order to reduce contract to writ- New- at her husband ing. lived with Koski Velma Jean on October to Newcastle drove castle. Mrs. Goodson her During consulted she the afternoon 1946. three hours period two or of about banker and father Smith, latter’s brother K. met after- McAvoy five o’clock about the office by Preston day. dictated noon of that The contract was par- McAvoy presence of the dictaphone in the T. into a *10 Betty by transcribed to this It was then ties action. parties Fowler; given of the copy to each Jean a was McAvoy pres- herein; by in the thereupon read was signed by thereupon them parties ence of it was the property, as respectively. purchase price the The stated, paid $85,000.00; was on before was $100.00 $10,400.00 day. payments The deferred were as follows: January 2, January 1947; paid 3, $8,500.00 on to be on 1949; 1948; $8,500.00 January 2, paid and the to on assumption of.$7,500.00 by paid an balance was to be mortgage by against property the a Federal the held agreement possession of the Land Bank. Pursuant premises given Christy K. Smith on November 15, although indicates, 1946. dis- The evidence further making puted by agreement, appellants, an escrow McAvoy 3, 1947, agent, January was executed on signed by Mary Goodson, Jean Koski and A. Velma Christy warranty Smith, K. deed to the property by appellants was executed herein and the January husband of All Velma Jean Koski on 1947. payments agreed by Christy K. to be made Smith except payment $8,500.00 were made the last which deposited was tendered to the herein and was County, Wyo- with the clerk of court of Weston ming. agreement warranty The escrow and the deed deposited were also the clerk of the court to await appears decision of the in case. It herein court this equally that the in land involved this action is owned daughter, having Koski, Mrs. and her Goodson Mrs. Goodson, been inherited from husband of Mrs. ex- cepting, however, portion land, apparently- land, bought by called the Adkins which was Mrs. Good- subsequent son to the death of her husband. That fаct particular bearing far as we can see has no in the bar, solely case at and is a matter between Mrs. Good- daughter. son and her dispute
The in the trial of the case was almost en- tirely question oil, confined to the as to the amount of gas and minerals in reserved the contract for by appellants deed herein. reference thereto February will hereafter be set out in full. On 28, 1951, judgment generally finding the court entered Christy in favor of K. Smith on all the issues in the case holding declaring controversy property that the property Christy is the quieted K. Smith. The court him, subject, however, title oil, to an interest gas and minerals under the land. The court held that by Mary one-third life; thereof is owned A. Goodson one-third thereof Velma Jean Koski for a term of twenty-five years, remaining oil, gas and that belongs minerals under the land K. Smith. *11 gave judgment The court in favor of the latter in the $266.66, being sum of money one-third of the collected by Mary granted A. originally Goodson under the lease to Allen as mentioned, heretofore and directed an as- signment of a State lease to be made to Smith which pоrtion lease was a property agreed of the to be con- veyed to Smith. The agree- court further held that the warranty ment for a warranty deed and the deed here- intofore mentioned are binding, valid and and that each of those freely instruments was voluntarily signed and by grantors the acknowledged and in due form of law. The court also directed the deed to be delivered to Christy K. Smith and that payment the last under the $8,500.00 contract of be turned appellant over to the herein, after approval examination and of the abstract in this the court entered the decree
of title. From of appealed to this court. appellants the have case OF AND GAS INTERESTS. 1. RESERVATION OIL stated, re- herein, heretofore as The main contention the reser- question to the extent of volves the as round oil, gas and in favor of Mrs. Goodson. vation of minerals warranty agreed deed by parties herein that the It is the made corresponds award with the heretofore mentioned gas oil, namely and court, of the the one-third Mary life, belongs one-third to for minerals A. Goodson years twenty-five the re- and to for Velma Jean Koski however, contended, It mainder K. Smith. considera- for that no additional counsel given executed, and tion was when the deed correspond provision with hence the in deed must the may warranty agreement those for a deed. We the It purpose this case. concede that to be true the of for gas oil, and is further for contended the reservation correspond reser- minerals the in the deed does not with agreement vation in the therefor. reservation the for deed is follows: parties except reserve, “The and and of the First Part and Warranty exception provide Deed shall for the reservation, undivided in and under lands Mary of an for and behalf of A. Goodson gas oil, and minerals one-third of the other land, of said said and the use surface away min- drill and mine for and take the said right ingress egress regress, erals so of for with the and long during Goodson, Mary and the life of the said A. hereby being the intent the same that at the demise time of her Party; parties shall revert the Second Warranty except, Part reserve First and and given provide Deed when shall for the reservation exception, oil, gas all in and minerals lands, under and the said use lands surface of said away same, to drill and mine for take right ingress, regress, egress, one- an undivided third and in Koski Velma Jean for thereof behalf of *12 during twenty-five years (25) and the term from and hereof, 8th, 1946, after and at the date October to-wit: twenty-five years, (25) undi- the end of said vided the said Party of the one-third interest shall revert to the (Italics supplied.) Second Part.” Counsel for contend view of the pass fact that one-third was to revert or after Smith the death of Mrs. and one-third more after Goodson twenty-five years, therefore Smith would receive no rights gas any oil, or minerals until either the death expiration twenty-five Mrs. Goodson after the years, respectively. opening In their statement in this case, expressed counsel their construction thus: “The gas middle clause reserves all the oil and The forever. upon first clause ais limitation the word ‘all’ and re- serves life, one-third to Mrs. Goodson for and the third third, reserving clause is a limitation on another one- twenty-five third to years, leaving Velma Jean Koski for one-third reserved to Mrs. Goodson Mrs. Koski for- (R. p. 6) ever.” Let us examine the reservation criti- cally dispassionately. part
The clause in the second of the reservation read- ing warranty given : “and the provide deed when shall for the exception,” reservation and is a clause not in- enlarge meaning tended to immediately pre- of what cedes, carry but was intended to it into effect. So elimi- nating clause, reducing part the second of the reservation to its gas and minerals the first part reserve and simplest terms, * [*] * an undivided one-third thereof except it reads: “The * * * of all the parties oil, for and in behalf of Velma during Jean Koski for and twenty-five years.” English the term of pro- of this vision is might flawless and clear. Some consider the language somewhat put stilted proviso for the provision. third before the other Nevertheless, it is gas clear that one-third oil, of all the and minerals and nothing more is reserved part the second reservation and that in favor of Mrs. Koski. The same thing is true if we read: given “The deed when *13 exception, the of all provide and for the reservation
is to * * * one-third oil, gas an undivided and minerals Jеan Koski.” in of Velma thereof for and behalf any give to the reservation other construction To give predominant effect to the a mentioned and to above necessary do, appellants it for “all” as counsel term ignore “exception” and after the comma for us to part parties the “that of first reserve” the strike given provide shall for deed when “The read: gas oil, exception all of reservation phrase stop “an undivided there. minerals” regarded might carved then be as thereof” one-third gas oil, and minerals” in favor of Velma all out “of such twenty-five years. If that were the con- for Jean Koski necessarily adopted, it that under would follow struction oil, gas provisions all the and minerals would be these Mary Goodson, subject in favor of perpetually reserved in for only interest favor Mrs. Koski to a third That, however, wholly years. in- twenty-five would be Mary clause which the first reserves for consistent only for life. It would not alone one-third Goodson to her such one-third on one reserve inconsistent to mentioned, it, other, on the all of as above but hand and contrary is also to all the evidence construction such specific provisions the contract were Under the case. major portion the oil and for two-thirds —the made —of namely gas interests, one-third in favor of Mrs. Goodson life, one-third for Mrs. and another Koski for for years. appears clause, “all” twenty-five The term in the whole, which, portion as middle counsel for contend, gas per- reserved all the oil and appellants it is unreasonable to contend petually. But that after provisions were made for two-thirds of the definite portion designated by should whole, then be the smaller portion in the “all”—and middle term strange place put in which to such reservation whole—a think that only Hence we that term “all.” bears meaning given It which have above mentioned. we placed on the reservation follows the construction clause the trial court is correct. placed upon
The construction the reservation clause argument by counsel is not in'the even testimony Koski, Mrs. sustained of his clients. testimony, her than claimed no more a third interest oil, gas period twenty-five and minerals for a years. only Mrs. claimed Goodson third interest but permanent and contended that that interest was not for *14 Christy life. She conceded that Smith had third in- 74, 88, 101, 213). (Q. terest The construction by placed upon by the reservation clause this court and amply by the trial court is sustained other evidence. The witness John Christensen testified that the term of years agreed upon; Christy buy was that not would property unless the oil interest was to revert him at a time; certain that a life estate was and that mentioned going longer Mrs. said she was Goodson to live than years. twenty-five (Q. The 876) witness Smith testified that Mrs. Goodson wanted one-third interest life, going longer for twenty- that she to live than years. five The witness Neis Smith as testified follows: “Q. (Q. 2110-2112) said, any- Tell the court what was if thing, respect to with reservations on the matter of the oil mineral that was contained in and under the very thoroughly lands ? A. That was discussed at that Q. you by time. what Will state was said Mrs. Goodson by Christy and what was said respect Smith with Well, thing A. up thereto? the first that came about Jean, it was Velma it, when as I remember came in and McAvoy Jean, Mr. asked hеr ‘Velma is it correct that you twenty-five years ?’, said, want and she ‘Yes it is.’ spoke up says, And her mother T accept that, won’t may longer I than live that. I want life.’ That was the at discussion that time.” The witness Peter Smith (Q. 2270) said Mrs. Goodson “didn’t like what Velma agreeable her for in that was came when she
Jean said years, words to twenty-five and she said to take your Jean, I like the effect don’t that effect ‘Velma my years, I oil interests taking twenty-five want because hap- gone I don’t care what life, I am when because ” long I The as live.’ I that income pens, want but talked with Mrs. testified that he witness C. B. Simmons then stated she 1948 and she June Goodson daughter twenty-five had in it and her had a life estate controversy years. herein arose. That was before quite apparent from what we have said this It is not, to the conflict of under the rules as could court any- credibility witnesses, testimony do and the judgment thing of the trial court affirm else but question here discussed. connection AND WARRANTY 2. ESCROW AGREEMENT DEED. they and Mrs. Koski denied that ever
Mrs. Goodson agreement the escrow evidence and the executed warranty deed. The execution of esсrow McAvoy, Christy Smith and Neis was testified by ample testimony. So, it sustained Smith. deed execution of the is shown the testi- *15 McAvoy by mony as well as the certificate of acknowl- by Betty edgment and, attached thereto Jean Fowler by ample testimony. hence, supported Moreover while is pretend expert not to be an court does handwrit- this signatures ing, various of Mrs. the Goodson Mrs. evidence, some of which are admitted to Koski be correct, agreement to us that indicate both the escrow warranty signed the deed well as were as executed might warranty by add that them. the We deed is of importance comparatively minor appears in this It case. fully complied Smith has herein with the by agreement any entered into him. So that event deed above executed, if the mentioned had not even been com- would have been and Mrs. Koski Mrs. Goodson pelled trial to conform the one the court to execute provisions of the contract. FRAUD, DURESS,
3. OR MISTAKE. petition apparently on was drafted theory the that the for a deed was through fraud, duress, possibly obtained or mistаke. signed by parties, But contract was and it does appear hearing bad, not that Mrs. Goodson’s or that Judging record, she was unable to read. from the she intelligent woman, handwriting is an and her is excel- Moffett, Hodgkins In case lent. & Clarke Co. v. City 28, (C.C.A. Rochester, Circuit), 91 F. 2nd equity court stated: “A court cannot undertake to parties they amake contract for which have not made themselves, equally just and would powers transcend its by compelling party relinquish a the fruits of con- a honestly made, he tract which has and in which there is wrong no taint of to affect his conscience. The recis- certainly or sion cancellation of a contract is as drastic provisions an interference with its as a modification of consequences may equally it. The in- even more jurious party deprived to the who is benefit which he is entitled it.” We held in Bushnell v. Elkins, Wyo. 495, 502; 245 P. that: “When parties deliberately put engagements have their in writ- ing, writing complete and such is on its face and cer- objects tain and definite toas engagement, of their conclusively presumed it is the whole contract of parties and the extent and manner of their under- taking writing, was reduced to and cannot be contra- dicted, altered, by parol added to or varied or extrinsic true, pointed evidence.” It is out in case, the same may fraud, contract be cancelled for duress or mistake, prove but burden to these upon factors is asserting party it. It is said in 3 Black on Rescission *16 “ grantor Cancellation, 1618, who that a §
alleges he did not under- deed invalid that his is because proving the burden of its contents must sustain stand work, is the it is said: “It fact.” In 679 of same that § sig- person presumption that when a affixes his of law a being instrument, juris, pos- sui nature a written read, faculties, he is and able to of his mental session terms, gives in- acquainted his its nature and telligent it embodies. to the contract which consent impeach on the instrument he seeks to the Hence when contract, ground or it does not contain the whole that contract, he than or that it contains more that purport provisions, the its or misled as to deceived or upon conten- proof is him establish these of burden tions, upon that the con- the defendant to show and not conveyance aрproved.” In or was understood tract work, is “The cancellation of a it said: 682 of the same § extraordinary an is exercise written instrument of grounds by justify equity, of it the power a court and to convincing, clear, must be established of cancellation work, evidence.” In 683 the same and well-founded § justify ordering a court in “To the author states: a or cancellation of a written contract recission ground instrument, representa- or fraud false on support tions, that the not evidence sufficient suspicion, allegation raise should a or indicate a that perpetrated, has probability, fraud been but it thoroughly convincing. This be decisive is the must authorities, although general purport courts, describing proof required, the measure of have used varying Thus, it is often terms. said that fraud or false ‘clearly’ proved, representations must be or established evidence, except ‘clear’ the court will act not C.J.S., 1060, 71, clear In 12 in a case.” it is § stated: generally held “It is cancellation of an exe- an extraordinary contract is exertion of the cuted most equity, court of power which will not be exercised
459 convincing strong except on in a and and evi- clear case principle been enunciated and followed dence. This has determining degree required proof in the to secure ground the cancellation of an instrument on the fraud, forgery, mistake, or In duress undue influence.” Parish, C., 213, 216, App. McDaniel v. D. court the “Suspicious equiva- stated: circumstances are not the proof; lents of and unless all the facts and circum- case, together, strong stances the when taken are enough generate to a clear rational conviction of the charged, ought existence of the fraud that conclusion adopted destroy prima good not to be which will a facie property, title to par- blacken the characters of the ties concerned.” question duress,
In connection with the of fraud and point tired; counsel out that Mrs. Goodson was that agreement when the for drafted, deed was evening; was late in the present that there was a for- State; large mer Governor this that men of stature present; roоm; were that there was smoke in the that good talking there a causing deal of in the room confusion. Attention is even to called the fact that separately Smith conferred with the married daughter of Mrs. Goodson. Counsel have not cited us to any cases which such facts have been held to consti- duress, say tute fraud or and we venture to that none Any finding by can be found to jury that effect. contrary allegation would have been set aside. The plaintiffs that were pure overreached is a conclusion and allegation not aid does them. The deprived that she was independent advice, too, is mere conclusion. That allegation, allegation and the further respondent employed plaintiffs’ regular attorney will be considered hereafter. Neither of them supported are the evi- dence.
Nor, think, any we has mistake been shown. The point main evidence on that is the evidence of Mrs. warranty- agreement a signed that she Goodson ranch, get back to deed, she had because contained she felt confident ranch, namely, that agreеd she on reservation as gas per- interest oil retain a third was to petually. on it is in 1 Black Rescission stated
In that connection party Cancellation, 131, cannot “A as follows: § obligation against into other a contract or relief have facts, ignorance of material entered which he has facts, no fraud or to such where under mistake *18 ignorance him, practiced upon his or imposition negligence lack entirely of due his own or mistake is to attention, failure to exercise rea proper or to the such thoughtfulness may expected in as be care sonable ordinary of care and from men transactions business Thus, example, who too careless or prudence. one is confiding acquaint the contents of a to himself with too written [**] * cannot instrument ordinarily presented to him for his base a claim to relief in signature equity identity, to that he was mistaken as its on the fact 379, 34, terms, purport.” In 9 Am. it Jur. is stated: § part compainant (complainant), “Negligence of the on mistake, prevent contributing will also to the the secur ing relief; practicаlly are the cases unanimous in holding mistake which results from to that failure exer degree diligence care and which would cise that be prudence by persons of reasonable under the exercised against. will not be circumstances relieved same This applicable particularly in cases rule is where mis * * * party’s to the failure read take was due to executing.” Supreme paper he was Iowa Court in Bradley, Reid, 220, & v. 105 Murdock Co. Iowa 74 N.W. general 896, aptly as follows: “It is a stated rule that objection negligence insuperable equity anis to relief ground In of mistake. the case of on the Glenn v. Stat 107, quoted approval ler, Iowa we 42 the rule an- by Judge Story Equitable work on Juris- nounced his prudence (section not, however, 146) ‘It is follows: cases, give party relief, in all sufficient to material; fact such he could not be but must be diligence get knowledge when reasonable he was put upon diligence, inquiry. if, by For reasonable such knowledge fact, equity he could have obtained of the will encourage him, culpa- not relieve since that would to negligence.’ Again, ble v. case of McCormack Molburg, ‘If Iowa it is said: the means knowl- edge alleged equally open fraud were both parties, negli- protect the law will not interfere ** * gent; and, put his if no device is used to him off party having guard, who, capacity an instru- to read signs ment, reading, places beyond it without himself legal representa- relief. If the truth or falsehood of the might vigilance by ordinary tion have been tested attention, neglect folly party’s it is the own if he to do so; Applying and he is remediless.’ rules to the these case, facts of the further de- court said: ‘The any plaintiff fendant does not state that used artifice prevent reading him contract, from nor he does unacquainted English state that he was with the lan- guage, fact, or that In he couldn’t read. excuse no what- given, except signed ever relying that he the contract representation on plaintiff as to its contents. This *19 neglect, is inexcusable and the defendant must suffer consequences folly. of his own The effect of a such by appellant rule as that claimed be to would render practical written cоntracts of but little over value those ” existing parol only.’ nothing When Mrs. Goodson testified that was said having about her a life estate in a third interest gas oil, land, and quite obviously minerals she was agreement mistaken. The warranty for a deed alone— from, testimony aside all contradicting her —shows memory faulty. her She, was herself, admitted agreement dictated that the for deed was McAvoy copy presence; of it in her that she received read; that, transcribed; heard it as she when she signed testified, “glanced it”; it; that it took at that she Christy Smith hours from the time when she 3J4 McAvoy’s office until the others went to think, finished, time, and that we shows that was part not of the reservation finished haste. The first gas clearly oil, unequivocally left minerals only life, her a third interest so that if had had for she any doubt as to whether or not more than that was testified, have, reserved she would not as she left her copy leaving McAvoy’s of the contract unread after twenty-one months, officefor some and would not have only admitted that she had a life interest as mentioned only previous controversy a month to the time thаt the any herein arose. see no We room basis conten- tion of mistake.
4. MRS. GOODSON’S HOMESTEAD RIGHT. argue Counsel for that Mrs. Goodson’s right conveyed. properly homestead was not It is true acquired right that she a homestead when her husband 3-4503, Wyo. Comp. Stat., died in 1942. 1945. That § right property homestead became her absolute 6-1504, Wyo. Comp. Stat., some limitation. 1945. It § seem, however, would raising that she is a little late in question, mentioned, above for the reason she gave abandoned her voluntary pos- homestead when she property session of the K. Smith on Novem- 15,1946, premises any ber and left the without intention right may to return. A homestead be- Arp abandoned. Jacobs, Wyo. 489, v. 27 P. and see annotation to 639, 778, that case. See also 40 C.J.S. which in the last very generally citation “It states: held that may widow’s be lost right of homestead abandonment acquired by [*] * * To constitute an survivorship
463 abandonment, surviving remove from the wife must -place a of not to return to homestead with intent removing therefrom, residence, must, form or after such intention.” may be, Goodson,
However that the con- Mrs. both itself, tract for the deed and in the deed right. waived her Thus in the contrаct homestead agreed warranty deed, and under- it is stated: “It is Mary stood that there is included A. herein on behalf Koski, Goodson and Jean the release and waiver Velma rights exemption of homestead and laws Wyoming.” acknowledgment, State In the it is stated grantors voluntarily that the “in- executed the contract cluding right the release and waiver of the of home- ; Mary widow, Goodson, stead the said A. a and the said Koski, Koski, having Velma Jean wife of M. J. been fully rights apprised me first of their and the effect of signing acknowledging said instrument.” Similar provisions are contained in the deed. Mrs. Goodson notary testified that no asked her about release of her right. homestead Rowray Building
This Casper court held in v. Mut. & Ass’n., Wyo. Loan 290, 7, great (2d) 48 45 P. where a number of reviewed, evidence, authorities are impeach notary’s acknowledgment, certificate of must cogent, clear, convincing. be See also 66 C.J.S. 619. Supreme subject Court of Nevada reviewed the at length Orcio, 52, Picetti v. (2d) 1046, 57 Nev. 58 P. opinion and in rehearing on in that case in 57 Nev. (2d) Quoting P. syllabi 315. from the in 67 P. (2d) 315, it is “Presumption notary’s stated: in favor of certificate acknowlеdgment, statutory not, whether only can by clear, cogent, convincing overcome * * * amounting evidence certainty. to a moral Uncor- testimony roborated party generally interested is not clear, cogent, such convincing evidence as is re- quired to presumption overcome notary’s favor of *21 McAvoy that acknowledgment.” It true of
certificate parties at the oath to an he administered that testified the instrument. they executed time when the testimony not does That meaning clear. is not of that acknowledg- of the certificate in the recitals contradict course, is, different acknowledgment of simple A ment. might However, well oath ordinary an oath. the from acknowledgment, simple a embody of all the elements would as mentioned the oath the administration and ordinary was care merely more than that to show seem question in the instruments in the execution taken just fully what understand parties would that so doing. they were upon the lay particular stress
Counsel apprised own of her not point was that Mrs. Goodson to times as right. They several asked her homestead apprisеd. answered She or not she had been so whether rely upon provision of negative. Counsel 1945, provides as 66-209, Wyo. Stat., Comp. which § occupant “Every of a homestead owner or follows: mortgage, voluntarily sell, may herein established same; provided, dispose of or encumber the otherwise mortgage, disposal every sale, or encumbrance such absolutely void, the owner or the wife of shall unless freely any, occupant homestead, shall if he have of such acknowledge voluntarily sign instrument of and writing, conveying, mortgaging, disposing or encum- taking bering homestead; her such and the officer right acknowledgment fully apprise shall her of her signing acknowledging such instru- the effect of Legislature by ment.” The section was modified stood, however, it 1949. As at the time of the contract 1946, necessary right apprise it was to a of the in wife provide of homestead. It did widow who had not that a apprised. no husband should be so Thus was held Bailly Bank, 122, v. Sisseton Farmers’ State 35 S. D. “making conveyance by N.W. a statute a invalid, unless husband a homestead both the owner of apply conveyance, a con- join does not and wife acquired surviving veyance by interest she a wife husband, deceased statute from her descent convey conveyance an interest a her is effective provi- property.” think that the homestead We 66-209, supra, apprising has no sion in a wife as to § evidently application intention widow. The against protected any influ- undue she should be accordingly part ence on the of her think husband. We that the not contention here made is well taken.
5. PROFESSIONAL OF ATTORNEY. CONDUCT Many pages appellants are counsel for brief of *22 professional devoted an attack of on the conduct McAvoy agreement Preston T. who for war- drafted ranty deed and the It too far deed itself. would take us points afield to to all in in refer contained the brief judgment, this In connection. our the attack is unwar- largely ranted. It is that based on the claim Mrs. Good- ways son was a defenseless woman unaccustomed to the of the world. The us intelli- record before shows she is gent, own, pretty clearly has a will of her and knew what she wanted. She had had the land for sale Christy some time and made come Smith to her terms. McAvoy settling attorney had been her in the estate of her perhaps deceased husband and in some other mat- ters. finished, These matters had been and the rela- tionship attorney accordingly of and client had been attorney agree- He terminated. was not her when the question ment in was drafted. Mrs. Goodson on account past of her relationship McAvoy with insisted that it would be drafted in his office since she trusted him. There is no any indication whatever the latter had drawing any motive for instruments which did not con- tain expressed the wishes which she to him. cannot We why any understand attorney he or other should have in accordance instruments to draft these refused that the main parties. surmise We that a reser- the fact arose reason trouble herein of prove as satis- life did not in oil for vation of an interest period of time. factory for a definite as a reservation on the came about McAvoy discussion testified: “The lengthy, explanation extensive I to a life estate. went died this that when she I told her with Mrs. Goodson. oil, gas аnd mineral * [*] * rights and estates would go twenty- Christy, Jean at the end and that Velma go years, at the end five hers would back * * * my say twenty-five years. And I should opinion an judgment parties come to an had ample opportunity to con- had accord.” Mrs. Goodson get advice, coun- independent to which sult him so as to refer, to his office went sel before she and others doing she con- had so she wished to do so. Instead in oil banker, who, interested sulted her or some one gas given production, perhaps have her better could independent her much better and could have told advice wisely McAvoy acted than or not she as to whether gas oil, retaining only life a estate one-third and minerals in the land. It was matter business legal con- and not a matter. Much is said brief cerning McAvoy papers had in the certain which so- consisting mainly copies. file, called of office Goodson papers. can- Counsel for Mrs. wanted these We Goodson why up not delivered see these should have been they appear demanded. Nor does were relevant *23 to the hеrein. controversial issues controversy McAvoy arose,
After the herein wrote to present counsel Mrs. and Mrs. Koski for Goodson agent that in of the fact that an view he was escrow for parties, he both would take a neutral attitude is case. It insisted he have continued to do that should so; appeared that he should not in have as counsel Christy Smith, case for and that not the court should permitted ,after the letter have him to do so. However written, Mrs. above Mrs. mentioned was Goodson virtually Betty of Koski accused him and Jean Fowler forging their to the and to the names escrow hardly justified in deed. This court would be saying attorney helpless that an at thus is law accused compelled should to take a neu defenseless and situation, resorting tral attitude in such a without to every to honor his reasonable means defend his integrity. by appellants The cases cited in this connec not, think, point. Take, instance, tion are we in for Wingilia Ashman, case of v. 241 Mich. 217 N.W. attorney 909. In case an at law had drafted a con plaintiff, tract for the and had been him consulted litigation arising subsequently in connection with the appeared defendant, out He of it. then for and he was disqualified doing bar, held from so. In case at McAvoy question drafted the contract here acquiescence parties consent all the interested and for all The matter was finished them. and out twenty-one Appellant way for some did months. present litigation. not him in consult reference contrary attorney. employed On the she another While attempt we not do determine the various circum attorney may may appear an stances under which not suit, party in a we think it clear that the trial court McAvoy permitting appear did not err this case. Rapids Co., Price v. See Grand and Indiana R. R. Ind. 137.
6. PAYMENTS TO JOINT CREDITORS. payments agreed made to be under the contract question here in all Goodson, except were made to Mrs. payment $8,500.00 deposited last payments the clerk the court. No were made to Mrs. Hence, argued by Koski. counsel for the contract is without consideration far so as Mrs.
468 accordingly judgment and that Koski is concerned Mrs. are mistaken. to her. Counsel must bе reversed as under the joint creditors and Mrs. Koski were Goodson point involved question. here contract in decided We 136; Wyo. 125, Breeden, P. 79 in the case of Hill v. 53 is (2d) a contract in that case: 482. said “When We payable parties jointly, in the case at two or more * * * If bar, payment may them. to either of be made they they jointly, payable ordi- choose to it to them have narily thereby they mutual confi- manifest have respective dence in each interests which other. The they may equal unequal. And it have therein or so is joint obligor up said that to hunt each is not bound * * * obligee pay him his share.’ Of the distributive disadvantages co-obligee he which this entails for complain, cannot act enter since ‘it was his own into right a contract with another who would have the ” accordingly control it.’ The contention here made is overruled.
7. A DEMAND FOR JURY.
Appellants
jury
demanded a
which was refused. We
brought by Christy
against
think the action
Smith
specific performance
is an action for
and no
by jury may
trial
be demanded in such case. 50 C.J.S.
753,
brought
questions
36. The
§
involved
the action
by
appellants against Christy
Smith and Preston T.
McAvoy
phase
appel-
are two-fold.
one
On
case
lants ask for
ques-
construction of the
contract here
view,
tion. In
stated,
our
as heretofore
the contract
ambiguous
meaning
not
but its
is clear. It is stated in
1279,
“Ordinarily,
17 C.J.S.
616:
the construction
§
legal
by
effects of a contract must be determined
question
court as a
617,
of law.” In
C.J.S.
§
ambiguous
is said: “The construction of an
contract
question
ais
ambiguity
law for the court where the
can be clarified
parts
reference to other
of the con-
ambiguity
tract,
arises
reason
or where
If
language
extrinsic facts.”
and not
used
because
ambigu
*25
question
in
can be said to be
the contract
here
parts.
part,
reference to other
ous in one
it is clarified
question
in
no
of fact is involved
connection
Hence
question.
in
Aside from
the construction of the contract
case, appellants
phase
asked that
the con
parties
tract
set aside
reason of al
between
leged
fraud and duress and mistake.
seems
While
altogether
holding
are not
unanimous in
that no
courts
jury
(See
in
trial сan be demanded
such a case
3 Black
general
(2d), 675),
on Rescission
Cancellation
§
may
rule seems to be that none
be demanded.
it is
Thus
746,
in
“A
said
50 C.J.S.
31:
suit to cancel or set aside
§
jurisdiction
or to reform an instrument
is within the
right
equity,
jury
and in such
no
suits there is
to a
trial.” That is held to be the rule for instance in Proctor
Arakelian,
368;
82,
v.
208
280 P.
Cal.
Winkler v. Kor
zuszkiewicz,
283,
110 Kan.
Counsel for contend that this case declaratory judgment act, an involves action under our Holly Sugar Corp. Fritzler, and that we held in v. 42 474; Wyo. 446, 206, 214, party 296 P. that a is entitled jury calling in to a trial such In a case. the action one foregoing act, grasps under the counsel at one statement prayer brought by in Christy Smith, of the action namely reading: the first sentence thereof “wherefore plaintiff prays the rights that this court make a declaration of respective parties.” hardly We think that necessarily that sentence alone makes the action one foregoing legislative assuming under the act. But other- wise, hardly we think that Holly what we in said Sugar Corp. meaning case can be construed as that a right
jury in trial a matter of all such cases. What point we said on that was connection with the ever question as to whether the action that case was main foregoing legislative tainable under act. Eeference jury merely jury trial was incidental. No had been point demanded that case so that reference to the hardly necessary. generally It seems to be held right under recent decisions of the courts that the to a jury depends trial in cases under the act aforesaid on Indemnity nature of the case. Pacific Co. v. Mc Donald, (2d) 446; Linahan, F. Linahan v. 131 Conn. 307, (2d) 895; Clatsop County 39 A. v. Webb School 3, 188 324, (2d) 368; District Employers No. Ore. 215 P. Liability Corp. Tibbetts, Assur. v. 96 N. H. 75 A. 714; (2d) 834; 62 Harvard Borchard, Law review De claratory Judgments (2d) 400. In the first of these cases, subject the court stated: “While the is not with *26 * * * difficulty out it is clear we think that issues of fact legal equitable are neither nor disposition but that their by jury, may be, the court or as the depends case upon setting in which the issues are framed. If the issues right are raised in an action at jury law to a trial equity obtains if raised in an may action in determined the court jury, without a or the court may jury call to its aid a whose advisory.” verdict is Aside from all that there were but upon two matters jury conceivably which a trial could have been had. One question was the of the agree execution of the escrow warranty ment and deed. As heretofore indicated that unimportant, would have been since K. Smith deed, conformity was entitled to a in agreement with an any therefor, in event. The other matter was that of fraud, duress or mistake. As shown, heretofore there not sufficient evidence in justified the case to have submitting questions the court in these jury. to the contention in Counsels’ this connection accordingly must be overruled. great deal of was introduced —at first on
A evidence part appellants fact that connection with the —in good July there was a deal of excitement June gas development in connection with oil and region situated, in which the land involved herein is sought into, that various contracts were entered or were into, by appellants. to be entered It' is somewhat difficult relevancy to discover of these transactions and the conditions in Appellants 1948 to the issues this case. perhaps development claim that this oil shows the rea- why son Mrs. would Goodson reserve more than one- third interest for life when she made the contract may 1946. theOn other hand it be said that it is much likely show, anything more all, why if at the reason sought Mrs. Goodson have contract of 1946 inter- preted in terms different from those shown for deed and the deed itself.
Other matters are mentioned in the brief of counsel appellants. opinion already long. But this too say Suffice it judgment that in our none of these mat- ters importance are of sufficient so as to deserve an argument thereon herein. We think that had eminently an fair trial. any areWe unable to find re- versible error in judgment the record and the trial accordingly court must be affirmed. It is so ordered.
Affirmed. J., Riner, Judge, Parker, District concur. *27 REHEARING
ON PETITION FOR 27, May 2d 244 P. *28 support petition
In rehearing, for there was a appellants by for brief A. Thomas Nicholas and Burgess, Casper, Wyoming. Robert A. both of Justice; Riner, Heard before Justice; Blume, Chief Judge. Parker, District ON REHEARING OPINION Blume, Justicе. Chief rehearing fore- filed in the petition been has
A *29 thought to the going be what we case. considered We fully in the questions in case important the vital and opinion of original at the end that opinion. stated' We men- long; matters had been it that other that was appellant, but that for of counsel tioned in the brief importance to deserve were of sufficient none of them However, had the argument. counsel still think so. We rehearing petition under our rules right for file a thought notwithstanding said, and freedom of what we country, heritages in expression the our is one of and of have to desire to stifle that. we it from So and far be us support petition. the In carefully the in of read brief pionts have main, heretofore decided the various the questioned, counsel seem think that on but been not argue they which the certain matters now of account shall, ought in reversed. We deference to to be case argued upon briefly counsel, touch some of the matters present brief. in the complain that Smith not com- was
Counsel interrogatory pelled the to answer submittеd interrogatory plaintiffs. That was as “State follows: paid was in connection with said consideration what general deed, apart from the consideration mentioned agreement.” alleged Respondent answered that the in subject plaintiffs on were as well informed that as he. obviously interrogatory true. The was sub- was That theory appellants of that mitted on enlarged rights respondent in evidence deed agreement granted' in to him the for that were which original opinion have shown that deed. We foregoing point accordingly not true. The becomes was academic, possible wholly prejudice and no resulted interrogatory fully fact was not from large say part of the answered. Counsel time respondent’s It the trial lost answer. was because was, not should have been. If that was due to the wrong theory appellants. Moreover, of counsel for los- ing unnecessary cannot, time a trial of a case ground course, judgment. reversal of the assigned appellants ruling Furthermore while error, court in connection herewith do not we find argued original hearing, that it at was either argument. assign- brief of or on oral accordingly ment of error quite ap- It is waived. parent that counsel took the same view the matter originally as d'owe now. say agree-
Counsel preliminary their brief that the important. ment at the ranch was Just what conclusion they any draw from that fact is not In clear us. may event whatever the at the ranch have been, superseded by it was a written contract subse- *30 quently Appellants it; copy drawn. had a of it was read signed they to them and easily it. Courts do not over- voluntarily turn by contracts which are entered into the parties according as was in finding this case true to the of the trial court. again argue question
Counsel the there were leading questions numerous asked in the trial of this by Christy case counsel for Smith. The control con- leading questions nection with largely in a case is within the sound discretion of the trial court. 70 C.J. 524. Upon record, examination of the we do not think that appellants any way were in prejudiced in connection matter, particularly this in view of the fact that the case was triеd the court jury. without a part As a consideration for Christy the contract agreed Smith assumed and pay to the Federal to Land mortgage Bank a in the sum of $7500. evidence mortgage shows that the is satisfied and released. Coun- say sel that the record Christy shows that paid Smith that the Fed-
only is hard to believe it While $7414.79. discharge agree a loan would eral Land Bank so, that was a matter $7414.79, if in fact did' $7500 does not con- the Smith between bank appellants. cern trial argued of the fact the in view
It meaning finding of the to the make a as court failed to right contract, no language this court had meaning and determine the thereof. the search record see, far we can As counsel are mistaken. thinkWe corresponds what finding the trial court True, original opinion. subject said on the we did, language we but did not use the same the trial court finding was the same. its the substance finding any say court did not make Counsel fraud, or duress mistake. of law on fact or conclusion connec- any specification in that of error do not find We rightly, argued, tion, point if recollect we nor was Moreover, original hearing. we think time of at the court found that are in error. The counsel acknowledged voluntarily signed, executed and the case deed involved for the instru- found: “That each of said It at further bar. binding law, upon parties is sufficient ments subsisting, and not void and not void- thereto, valid any thing matter within issues able reason herein and evidence adduced of action of the causes support court did not use the In thereof.” While the mistake, fraud, duress and the substance of its terms finding fraud, contract was free from is that the duress and mistake. again good pres- devoted a have deal of their
Counsel *31 professional ent to the conduct of one of the coun- brief respondent. think that what we said on sel We original opinion subject say is all that we should say wrong that we Counsel were thereon. when we professional that the conduct of stated counsel for re- any They disclaim attack. spond'ent “attacked.” you man, then disclaim that hit a However when you him, rather valueless. That is hit the disclaimer is about situation here. ground rehearing herein, find for a and the
We no is, accordingly petition therefor denied. Judge, J. and
Riner, Parker, District concur.