Opinion
Aug. 21, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Richard P. Doucette, Granby, for plaintiff-appellee.
Donald L. Brundage, P. C., Westminister, for defendants-appellants.
ENOCH, Judge.
This is an appeal from a judgment entered in favor of the Board of County Commissioners of Grand County (County), plaintiff, and against Earl C. Baumberger, Mary K. Baumberger, Paul E. Coffey, Audra Coffey, and Stephen J. Digor, defendants. The court ordered that a deed transferring a right-of-way for a road from Digor to the county be reformed and that the defendants among others be permanently restrained and enjoined from interfering with the county's or the public's use and possession of the property described in the reformed deed. We affirm.
On December 1, 1953, defendant Digor filed a plat signed by him in which a proposed road across his land, represented by the segments A, B, C, and D in the diagram below, was designated 'Digor Drive.'
RPT.CC.1973124822.00010
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On May 10, 1961, Digor signed a letter in which he agreed to deed to the county a right-of-way in exchange for the county's agreement to open up and maintain Digor Drive. A deed was executed on June 8, 1961, conveying to the county '(a) continuation of Digor Drive through SW 1/4 N.W. 1/4 of Sec. 26, Twp. 3 N.R. 76 W of the 6th PM.' The deed also contained a description by courses and distances of three segments of the land; (1) segment A, (2) segment C Or E, and (3) segment D Or G.
It is by construction of this deed that the land intended to be conveyed will be determined. A literal reading of the description of the property granted by the deed is consistent with a single grant of two separated segments of land, one consisting of segments A and E and the other consisting of segment G. This construction, however, would leave significant voids, totaling in excess of 600 feet, represented by segments F and H, in any right-of-way leading from the N 1/2 NE 1/4 of Section 27 to U.S. highway 34. On the other hand the county claims and the trial court found that the land intended to be conveyed is the route A B C D as designated Digor Drive in the 1953 plat. Although the course and distance descriptions are consistent with segments A, C, and D of this route, the deed contains no description of segment B.
I.
In support of the A E F G H route as being the route for the right-of-way intended in the deed, defendants rely upon the general rule enunciated in Whiteman v. Mattson, 167 Colo. 183, 446 P.2d 904, to the effect that where there are repugnant calls in a deed, natural and artificial monuments as well as adjacent boundaries control over course and distance calls. Application of this rule without qualification would result in segment E being extended beyond the distance designated in the deed such that it would encompass segment F. And likewise, segment G would be extended to include segment H. Thus, the right-of-way would be rendered continuous on the route contended by defendants.
The general rule urged by defendants, however, has a limitation. '(I)t is not permissible to disregard any of the calls if they can be applied and harmonized in any reasonable manner.' Whiteman v. Mattson, Supra. By including a call representing segment B, the calls for segments C and D not only conform to the courses and distances recited in the deed, but they also apply and are harmonized in a reasonable manner rendering the 'monument' or boundary calls effective.
II.
Defendants also contend that reformation is not the proper remedy because, at most, a unilateral mistake in the description was made by the county. On findings supported by the evidence, the trial court found, as required by Segelke v. Kilmer, 145 Colo. 538, 360 P.2d 423, that a mutual mistake had occurred and that therefore reformation was proper. Without detailing the evidence supportive of this finding, suffice it to say that in order to accomplish the result sought by either party, the written instrument would have to be changed either by (1) adding segments F and H to segments E and G, or by (2) adding segment B as an additional call.
III.
Defendants also object to the admission of parol evidence for construction of the deed which they allege is clear on its face. A review of the record, however, demonstrates that the court's finding that the deed was ambiguous is supported by the evidence and will not be disturbed on review. American National Bank v. Etter, 28 Colo.App. 511, 476 P.2d 287.
IV.
Finally, defendants base certain of their contentions of error upon the fact that the evidence does not conclusively show that the consideration recited in the deed actually passed from the county to Digor. While an action may be maintained to recover consideration not paid, evidence of non-payment cannot be allowed in order to avoid the deed or to vary its effect. Brown v. State, 5 Colo. 496.
We find the remaining arguments of defendants to be without merit.
Judgment affirmed.
COYTE and SMITH, JJ., concur.