APPEAL from a judgment of the Superior Court of the County of Maricopa. Fred W. Fickett, Judge. Judgment affirmed.
Messrs. Cunningham, Carson & Gibbons, for Appellants.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellee.
[42 Ariz. 494] ROSS, C. J.
This suit was commenced by plaintiff, Tuller, against defendants, Korrick, to reform a deed for mutual mistake in the description of land conveyed. The court tried the case without a jury and gave judgment for plaintiff, and the defendants have appealed.
In 1895 the then owner of the S.E. 1/4 of section 29, township 2 south, range 3 east, divided the same into sixteen lots of ten acres each and called it Buena Vista tract, which was suburban to the city of Phoenix. The quarter-section was platted, showing location of lots and public highways or streets, and the plat was filed in the office of the county recorder of Maricopa county. Through mesne conveyances the plaintiff, Tuller, who resides in Los Angeles, became the owner of lots 1 and 8 of said subdivision, or twenty acres in compact form located as the E. 1/2 of the N.E. 1/4 of the S.E. 1/4 of said section. Its shape is that of a parallelogram; its length being 1,261.6 feet north and south and its width 631.2 feet east and west, if calculated according to the United States governmental survey lines, but, if calculated according to the plat of Buena Vista tract, the length and width [42 Ariz. 495] are reduced by the number of feet dedicated to the abutting streets.
Shortly before January 20, 1928, defendant Charles Korrick called on plaintiff at his office in Los Angeles for the purpose of trying to purchase a piece or parcel of said land as a site for a home he was then contemplating building. He wanted two and one-half acres and was willing to pay therefor $2,750 per acre. Plaintiff did not want to sell in parcels less than five acres, and asked $3,000 per acre. They separated with the understanding that future negotiations might be taken up in Phoenix. On January 20th, plaintiff
wrote defendant that he was unable to come to Phoenix, but that Frank W. Shedd, his agent in Phoenix, was empowered to take up the matter with him and to go into an escrow agreement. On January 26th Shedd and Korrick came to an agreement under the terms of which Shedd, as the agent and trustee of plaintiff, agreed to sell and Korrick agreed to purchase two and one-half acres of said land at the rate of $2,750 per acre, and undertook to reduce their agreement to writing, such writing taking the form of an escrow agreement, and therein described the piece or parcel of land as follows: "S. 1/2 of S. 1/2 of S.E. 1/4 of N.E. 1/4 of S.E. 1/4 of Sec. 29, Tp. 2 N.,R. 3 E. of G. & S.R.B. & M., also known as S. 1/2 of S. 1/2 of Lot 8, Buena Vista Tract." The Phoenix Title & Trust Company's manager prepared and wrote the escrow agreement. Both Shedd and Korrick believed at the time of the execution of the escrow that the two descriptions therein covered the identical property. The description according to the plat of Buena Vista tract is two and one-half acres bordering on Palm Avenue and Seventh Street, and the description by legal subdivision includes in the two and one-half acres such streets to their centers.
The survey made of the ground according to the plat of Buena Vista tract gave defendant 158 feet [42 Ariz. 496] frontage on Seventh Street. If it had been surveyed according to the governmental lines, it would have given him 22 1/2 feet less frontage on that street.
The land in question is a strip off the southerly part of lot 8, otherwise described as the southerly part of the E. 1/2 of the N.E. 1/4 of the S.E. 1/4 of said section 29, and is on the west side of Seventh Street, directly across from the Arizona Country Club.
On March 19, 1928, plaintiff himself wrote a deed conveying two and one-half acres to Korrick, and caused it to be executed and delivered by Shedd (to whom he had in the meantime deeded his twenty acres in trust), and was then paid for the land at the agreed price. This deed describes the premises as follows:
"The South half (S. 1/2) of the South half (S. 1/2) of lot 8, Buena Vista Tract, according to the plat on record in the office of the County Recorder of said Maricopa County, in Book 2 of Maps, page 46; said parcel containing (including streets) 2 1/2 acres, more or less, subject to all encumbrances, conditions and restrictions of record."
The court found that both parties believed that the two descriptions of the land contained in the escrow agreement were of the identical piece or parcel of land; also that in their first proposals of sale and purchase they agreed that, if and when a deal should be made, the area sold should include as a part thereof the abutting streets to the center; also that plaintiff intended to sell and defendant Korrick intended to purchase the S. 1/2 of the S. 1/2 of the S.E. 1/4 of the N.E. 1/4 of the S.E. 1/4 of said section 29; also that error of description in deed occurred through a mutual ...