Freeborn v. Dow

Robert and Donna Freeborn (plaintiffs) owned 125.53 acres of land, with 5.65 acres constituting a residential site (tract A) and 119.88 acres constituting pastureland (tract B). The Freeborns agreed to sell the pastureland to Neal Dow (defendant). However, tract A and tract B were not separate legal lots, meaning that partition and land-use approval were necessary to allow separate legal ownership. In 2013, the parties executed a contract stating that the Freeborns agreed to sell the entire property to Dow, with the Freeborns to retain possession of tract A pending the necessary partition. The contract further stated that once partition was effectuated, Dow was to reconvey title to tract A to the Freeborns. Shortly after the contract’s execution, the Freeborns executed a warranty deed conveying the entire property to Dow. It did not reference the possession or eventual reconveyance of tract A. The Freeborns continued to live on tract A after the deed’s delivery. However, in 2018, Dow sold the entire property to a third party, who then served an eviction notice on the Freeborns. The Freeborns sued Dow for breach of contract. Dow argued that under the doctrine of merger, the parties’ contract merged with the deed upon the deed’s execution, and consequently, the deed’s failure to reference the agreement to reconvey tract A extinguished Dow’s obligation to do so. The Freeborns argued that the doctrine of merger does not apply if delivery of a deed constitutes only partial performance of a sales contract. The trial court granted summary judgment in Dow’s favor, concluding that the doctrine of merger applied. The Freeborns appealed.