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Voss v. Brooks (12/8/95), 907 P 2d 465
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD VOSS, )
) Supreme Court No. S-5507
) Superior Court No.
v. ) 3KN-91-745 Civil
KATHERINE BROOKS, )
) O P I N I O N
______________________________) [No. 4294 - December 8, 1995]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Charles K. Cranston, Judge.
Appearances: H. Frank Cahill, McNall &
Associates, P.C., Anchorage, for Appellant.
Sanford M. Gibbs, Stone, Waller & Jenicek,
Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
In this appeal, Richard Voss challenges the superior
court's dismissal of his action to partition real property
situated near Mackey Lake on the Kenai Peninsula (the property).
In 1983 Voss deeded the property to himself and Katherine Brooks
as joint tenants. After a falling out, Voss sued for partition
of the property. In response, Brooks alleged that Voss had
promised to convey the land to her if she would move to Alaska
and build a house on the property in which Voss, Brooks, and
Brooks' two sons would live. The superior court found the
existence of an oral contract to convey the land solely to
Brooks, found a mutual mistake regarding the legal effect of the
joint tenancy language in the deed, and reformed the deed to
transfer title exclusively to Brooks. We reverse and remand.
I. FACTS AND PROCEEDINGS
Voss and Brooks met in 1964, when the two shared a
brief romantic relationship. After 1966 the parties went their
separate ways but never lost contact. Voss bought the property
in 1976. Although he prepared to construct a residence there the
following year, his plans never materialized.
Sometime in the fall of 1978 Voss discussed the
property with Brooks. In February 1979 Brooks flew to Alaska
where she met Voss and viewed the property. According to Brooks,
Voss offered to grant her the property outright if she would move
to Alaska, build a house on the lot, and make a home for Voss and
her two sons. According to Voss, he suggested Brooks come to
Alaska and they would share the property and any house that would
be built on it. Together they would live in the house, share
expenses, and provide a home for each of them and for Brooks' two
Brooks left her job in Sacramento in August 1983 and
moved to Alaska with her sons. Soon after arriving in Soldotna,
she and Voss hired a contractor to build a house on the property.
Construction began in October 1983. Brooks provided most of the
financing for the construction -- over $166,000 -- from her
savings and the proceeds of the sale of a house she had owned in
Sacramento. Voss contributed the land, for which he had paid
approximately $16,000, a well he had drilled there at a cost of
$1,619, and the blueprints, for which he had paid $562. He also
contributed $10,000 in cash to the initial building account, but
it is disputed whether any of these funds were actually used for
building expenditures. In addition, Voss purchased some building
materials. Both Voss and Brooks assisted the contractor and
worked on finishing the house after the contractor left, although
Brooks seems to have performed the majority of the work.
On November 15, 1983, shortly after construction began,
Voss executed a quitclaim deed transferring the property to
himself and Brooks as "joint tenants." Brooks requested the use
of the term "joint tenants" in order to create a right of
survivorship in Voss. She claims that she intended that, in
event of her death, Voss would hold the property in trust for her
Voss, Brooks, and Brooks' two children moved into the
house in March 1984. They lived there together for the next four
years, although Voss was often out of town, either in Anchorage
waiting for a job as a Teamster or at a remote job site. Voss
maintained an old travel trailer in Anchorage as a temporary
dwelling during his time there. Voss occasionally paid the
utilities on the property, although Brooks apparently paid the
bulk of their living expenses. Voss also paid some of the
property taxes and insurance on the property.
In December 1988 Voss moved out of the Mackey Lake
home. Two years later, Brooks changed the locks, locking Voss
out. In September 1991 Voss filed a complaint in the superior
court, claiming that the Mackey Lake property and home were owned
by the parties as tenants in common. He sought an order of
partition or, in the alternative, the sale of the property, with
the proceeds to be divided between the parties. He also sought
to recover an amount in excess of $40,000 for conversion of his
personal property to which he was denied access.
Following the conclusion of a non-jury trial, the
superior court issued a memorandum decision finding that the
evidence supported Brooks' claim that Voss had agreed to grant
her the property in exchange for moving to Alaska and building a
home for Voss and for Brooks' children. In addition, the court
found that the quitclaim deed by which Voss deeded the property
to himself and Brooks as joint tenants was the result of a mutual
mistake of law, and it reformed the deed based on the parties'
earlier oral agreement. The court therefore awarded Brooks the
property free and clear of any claims of Voss except for
approximately $2,000 that Voss had spent on the construction of a
well and for blueprints for the house. This appeal followed.
A. Standard of Review
This court will not set aside the trial court's factual
findings unless they are clearly erroneous. Klosterman v. Hickel
Inv. Co., 821 P.2d 118, 121 (Alaska 1991); Alaska R. Civ. P.
52(a). "A clearly erroneous finding is one which leaves this
court with 'a definite and firm conviction . . . that a mistake
has been made.'" Klosterman, 821 P.2d at 121-22 (quoting Parker
v. Northern Mixing Co., 756 P.2d 881, 891 n.23 (Alaska 1988)).
In reviewing the factual findings of the trial court, this court
must view all of the evidence in the light most favorable to the
prevailing party. Id. Due regard must be given to the trial
court's opportunity to judge the credibility of the witnesses.
Alaska R. Civ. P. 52(a).
B. Merger into Deed
The trial court found that Voss had agreed to convey
the property to Brooks if she would move to Alaska, build a house
on the lot, and live there with Voss and her two children. In
accordance with this finding the court reformed the joint tenancy
deed to convey all of Voss' interests in the property to Brooks.
However, merely because there was such a prior agreement does not
justify reforming the joint tenancy deed. If Brooks understood
that the deed conveyed only one half of a present possessory
interest to her, her acceptance of the deed would discharge the
oral contract and form a new contract defined by the deed.
Generally, rights under a contract to convey property
are said to be merged into a subsequent deed. Thus if a deed is
unambiguous and inconsistent with a prior agreement it is the
deed that controls. 6A Richard R. Powell, Powell on Real
Property & 901[d], 81A-157. See S. Utsunomiya Enters. v.
Moomuku Country Club, 866 P.2d 951, 968 (Haw. 1994); Scott v.
Curtis, 798 P.2d 248, 250 (Or. App. 1990); see generally 2 Milton
R. Friedman, Contracts and Conveyances of Real Property ' 7.2, at
887 (5th ed. 1991).
Execution and delivery of a deed by the
seller . . . usually constitute full
performance on his part, and acceptance of
the deed by the buyer manifests his
acceptance of that performance even though
the estate conveyed may differ from that
promised in the antecedent agreement.
Therefore, in such a case, the deed is the
final agreement and all prior terms, whether
written or verbal, are extinguished and
Stubbs v. Hemmert, 567 P.2d 168, 169 (Utah 1977) (footnote
omitted) (emphasis added).
In this case, Voss executed a quitclaim deed conveying
the property to himself and Brooks as joint tenants. Under a
strict application of the merger doctrine, Brooks' acceptance of
this deed extinguished her rights under the parties' earlier oral
agreement. Because the "joint tenancy" deed here served to
create a tenancy in common under Alaska law,2 Voss ordinarily
would be entitled to seek partition under the deed. See AS
However, the doctrine of reformation may be applied to
defeat a merger. As Professor Corbin has observed:
The doctrines of "merger" or "estoppel
by deed" have never prevented the reformation
of a deed in which the words of description
or of conveyance fail to describe correctly
or to convey the land or interest that was
3 Arthur L. Corbin, Corbin on Contracts ' 604, at 631 (1960).
There are five commonly accepted grounds for
reformation according to a leading commentator:
The following list sets forth the
commonly recognized grounds for an action to
reform a deed. While not all courts agree
that every element in the list is a proper
ground, there is general agreement on the
first two: (1) mutual mistake of fact in
which the deed, as written, does not conform
to the prior agreement of the parties; (2)
fraud by one party which causes the other
party to be under a mistaken belief as to the
contents of the deed; (3) duress by one party
which deprives the other party of any true
freedom of choice; (4) unilateral mistake by
one party and fraudulent or inequitable
conduct by the other party, especially where
the latter party knew of the other's mistake
and kept silent; and (5) mistake of law
(although there appears to be substantial
authority that this is not a proper ground
for a reformation action).
Powell, supra, at 81A-162-163 (citations omitted). The party
seeking reformation has the burden of establishing by clear and
convincing evidence that one or more of these grounds exist. See
Oaksmith v. Brusich, 774 P.2d 191, 197 (Alaska 1989).
Of the five grounds for reformation noted above, three
are potentially applicable here. They are (1) mutual mistake of
fact, (2) unilateral mistake by Brooks plus silence by Voss
knowing of Brooks' mistake, and (3) mistake of law which was
either mutual or unilateral on the part of Brooks and known to
Voss. In the context of this case the core facts common to each
of these theories are the same. It is not enough for Brooks to
show the prior oral agreement for such an agreement would be
merged in the deed. She must also show she mistakenly believed
that the deed conveyed to her alone the entire present possessory
interest in the property rather than a present possessory
interest shared with Voss. Further, she must show that Voss also
had such a belief, or, alternatively, that Voss knew of her
D. The Evidence Does Not Support Reformation
There is evidence that Brooks mistakenly thought that
upon the death of either joint tenant the survivor would
automatically take the interest of the deceased. This mistake,
shared by Voss, might justify a remedy which requires the parties
to execute documents which create the intended right of survivor
ship.3 However, this mistake would not justify reformation of
the deed so that Brooks receives an entire present possessory
interest. For the deed to be reformed in this way there must be
clear and convincing proof that Brooks thought the deed conveyed
an entire present possessory interest to her and that Voss either
shared in this belief or knew of Brooks' mistake. There was,
quite simply, no testimony that Brooks made such a mistake, no
testimony that Voss made such a mistake, and none that Voss knew
that Brooks had made such a mistake.
In this case the trial court did not, at least clearly,
find that one or both of the parties had made a mistake
justifying reformation. However, even if such a finding had been
made it would be clearly erroneous given the lack of evidence
noted above. For these reasons the judgment must be reversed.
Under Alaska law, the deed created a tenancy in common
between Voss and Brooks. Voss as a tenant in common is entitled
to seek partition of the property. Tenants in common are
presumed to take equal undivided interests, but this presumption
is rebuttable. D.M. v. D.A., 885 P.2d 94 (Alaska 1994). Exactly
what Voss' co-tenancy interest is and the dollar amount to which
he is entitled should be the subject of a further evidentiary
hearing on remand.
REVERSED and REMANDED for further proceedings
consistent with this opinion.
1 The trial court believed Brooks' account of the transaction rather than
2 It is undisputed that Voss and Brooks could not hold the property as joint
tenants under Alaska law. See AS 34.15.130 (providing that only married
couples may jointly own real property with a right of survivorship); Carver
v. Gilbert, 387 P.2d 928, 932 (Alaska 1963) (noting that Alaska has
abolished joint tenancies). Alaska Statute 34.15.110(a) provides that a
conveyance or devise of land to two or more unmarried persons creates a
tenancy in common in the estate.
3 This remedy would, however, be foreclosed by the same policies which
prompted the legislature to prohibit unmarried persons from holding
property as joint tenants. See AS 34.15.130.