Hall v. Hall

Slip Opinion No. 100 of November 18, 1988, is withdrawn and this opinion substituted therefore.

ON REHEARING

HUNTLEY, Justice.

This appeal concerns the characterization of real property in a divorce action. More specifically, the issue is whether, when a deed conveys title to a husband and wife “For Value Received,” parol evidence may be utilized to establish that a portion of the estate conveyed was to have been conveyed as a gift. After trial in the magistrate division, the realty was held to be part community in nature and part separate. The wife appealed to the district court where the decision was affirmed. The Idaho Court of Appeals reversed and remanded, 112 Idaho 641, 734 P.2d 666, ruling that the deed could not be varied or amended by such parol evidence. We concur.

The property in question is a ranch located near Horseshoe Bend, Idaho. Carol and Anthony Hall purchased the ranch in 1981 from the husband’s grandparents for $60,-000. The purchase money was community property. The deed states:

*484For Value Received, THOMAS R. FAULL, SR., also known as Thomas R. Faull, Thos. R. Faull, Thomas Richard Faull, Sr., and Thomas Faull and FLORA M. FAULL, husband and wife, grantors, do hereby grant, bargain, sell and convey unto ANTHONY M. HALL and CAROLYN S. HALL, husband and wife, the grantees, ... the following described premises____

At trial the husband’s grandmother, Mrs. Faull, testified that the ranch was worth about $100,000 at the time of the sale. She indicated that the value above the purchase price was meant to be a gift to the husband alone. The wife’s objection to this testimony was overruled.

The magistrate awarded the ranch to the husband and characterized the ranch as 60% community property. The wife was awarded $30,000 as reimbursement for her share of the community funds used to buy the ranch. The magistrate ruled that the remaining 40% was a gift to the husband and therefore was his separate property. The ranch was determined to be worth $100,000 when it was acquired and worth $120,000 at the time of the divorce. The $20,000 enhancement was divided between the parties by the ratio of community and separate property interests found. After deducting community debts from the community’s share of the enhancement, the wife was awarded $33,651.29 for her share of the community interest in the ranch.

Carol Hall brings this appeal to challenge the court’s characterization of the property. She contends: (1) that Mrs. Faull’s testimony concerning donative intent violated the parol evidence rule; (2) that I.C. § 55-606 prohibits the Faulls from changing the terms of the recorded deed; and, (3) that the finding of a gift was not based on clear and convincing evidence. The first issue is dispositive; hence we will not address the second and third issues.

Carol Hall contends that the deed by which she and Anthony took the ranch is plain and unambiguous, and therefore cannot be varied by parol evidence. The only pertinent language of the deed is as stated hereinabove. Where possible, the court should give effect to the intention of the parties to a deed. Gardner v. Fliegel, 92 Idaho 767, 450 P.2d 990 (1969). Where the language of a deed is plain and unambiguous the intention of the parties must be determined from the deed itself, and parol evidence is not admissible to show intent.1 Id. Oral and written statements are generally inadmissible to contradict or vary unambiguous terms contained in a deed. French v. Brinkman, 60 Cal.2d 547, 35 Cal.Rptr. 289, 387 P.2d 1 (1963); Neeley v. Kelsch, 600 P.2d 979 (Utah 1979). If the language in the deed is ambiguous, then evidence of all the surrounding facts and circumstances is admissible to prove the parties’ intent. Gardner v. Fliegel, supra. The parol evidence rule does not preclude the use of extrinsic evidence to explain the parties’ intent when the provisions of a writing are ambiguous. Ness v. Greater Arizona Realty, Inc., 117 Ariz. 357, 572 P.2d 1195 (App.1977). Where, as here, the consideration clause clearly recites that the transfer was made “For Value Received,” parol evidence is not admissible to contradict the deed by attempting to show the transfer was in part a “gift” rather than “for value.”

The testimony of Mrs. Faull, relied upon by the trial court to support its characterization of the ranch property, was not admissible. Therefore, we remand to the magistrate court for a re-characterization of the property after a review of the admissible evidence and for adjustment of the property division as appropriate. Costs to appellant, no attorney fees awarded.

BISTLINE and JOHNSON, JJ., concur. SHEPARD, J., sat but did not participate due to his untimely death.

. There are certain recognized exceptions such as where a deed is one of several contemporaneous documents or where it can be established that the grantee is a trustee for others.