ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
THOMAS J. HILLIGOSS
Russell, McIntyre, Hilligoss & Welke
DONALD G. FERN
Fern, Grund & Grund, P.C.
COURT OF APPEALS OF INDIANA
ROGER S. WRIGHT,
REBECCA S. SAMPSON,
APPEAL FROM THE MIAMI CIRCUIT COURT
The Honorable Rosemary Higgins-Burke, Judge
Cause No. 52C01-0107-CP-278
July 19, 2005
OPINION - FOR PUBLICATION
Roger Wright appeals the trial court’s judgment in favor of Rebecca Sampson, which
quieted title to certain property in Sampson’s name and denied Wright’s counterclaim for
reformation of certain deeds. We reverse and remand.
Wright raises four issues for our review, which we consolidate, reorder, and restate as
1. Whether a grantee, who is in privity with the grantor, may bring a claim for
reformation of one of the grantor’s earlier deeds to a different grantee;
2. Whether a deed that was given as a gift to a grantee may be reformed because of a
unilateral mistake on the grantor’s part; and
3. Whether the trial court erred in refusing to allow certain witnesses to testify.
Facts and Procedural History
Ray Wright (“Ray”) is the father of Wright and Sampson. At issue here is a parcel of
property consisting of roughly twenty-five acres owned by Ray that is located in Miami
County, Indiana. On the eastern portion of this property is a junkyard business that is
operated by Ray and Wright. Sampson’s home is located on property directly west of the
twenty-five acre parcel owned by Ray. At some point, Ray decided to divide the twenty-five
acre parcel between Wright and Sampson, with each getting roughly one-half of the property.
Ray intended that Wright should be given the eastern half of the property where the junkyard
was located, while Sampson would receive the western half of the property. Ray hired
attorney Thomas Keith to prepare the necessary deeds for Wright and Sampson.
On May 30, 1997, Ray executed a deed, prepared by Keith, to Sampson, and Sampson
recorded the deed that day. The deed was given to Sampson as a gift, and she gave no
consideration for it. Keith later learned that this deed contained an incorrect property
description, and informed Ray that the deed had, in fact, conveyed the entire twenty-five acre
parcel to Sampson.
On September 22, 1997, Ray, who was still unaware of the error in Sampson’s deed,
executed a deed to Wright, who recorded the deed that same day. Like Sampson’s deed,
Wright’s deed was given to him as a gift, and he gave no consideration for it. Keith later
determined that Wright’s deed contained an incorrect property description in that it conveyed
to Wright the western half of the twenty-five acre parcel rather than the eastern half.
Additionally, the property conveyed to Wright had already been given to Sampson in her
Ray contacted Wright and informed him of the errors in his and Sampson’s deeds.
Ray provided Wright with certain documents prepared by Keith that were designed to correct
the mistakes in his and Sampson’s deeds, and requested that Wright take these documents to
Sampson so that she could sign them. When Wright delivered the documents to Sampson,
she refused to sign them. Following this, Ray continued to operate the junkyard on the
twenty-five acre parcel. Disputes eventually arose between Wright and Sampson regarding
access to the property, and on July 3, 2001, Sampson filed a complaint asking that title to the
entire twenty-five acre parcel be quieted in her name.
Wright filed a timely answer to Sampson’s complaint along with a counterclaim
against Sampson. Wright’s counterclaim requested that the trial court reform both his and
Sampson’s deeds to reflect Ray’s true intentions. On September 15, 2003, Wright filed a
motion to join Ray as a defendant, which the trial court denied on January 6, 2004. A bench
trial was held on August 9, 2004. During the trial, Wright sought to have both Ray and Keith
testify. Sampson’s counsel objected arguing that Ray and Keith should not be allowed to
testify because it was contrary to the statute of frauds and the parol evidence rule. The trial
court sustained Sampson’s objection, and Wright’s counsel made an offer to prove what both
Ray and Keith’s testimony would have been. On September 13, 2004, the trial court issued
an order in which it made the following pertinent findings of fact and conclusions of law:
5. [Sampson] is before the court seeking to quiet the title of the property
deeded to her in May 1997. [Wright] has requested that the court reform
the deed given to [Sampson] by their father [Ray], and states it was not his
father’s intention to give [Sampson] the entire property.
6. [Wright] has submitted no evidence that his title is superior to the title to
the real estate held by [Sampson]. In addition, no evidence was presented
that either a mutual mistake was made at the time [Ray] deeded the
property to [Sampson], or that [Sampson] induced the transfer to her by
7. For a party to succeed in a reformation action, evidence must be presented
that either demonstrates a mutual mistake or fraud by clear and convincing
evidence. Meyers v. Marine Builders, Inc., 797 N.E.2d 760, 771 (Ind.
Appellant’s Appendix at 6-7. 1 The trial court concluded that (1) Sampson’s deed took
priority over Wright’s deed; (2) Wright’s counterclaim for reformation of the deeds was
without right and unfounded; and (3) title to the twenty-five acre parcel should be quieted in
Sampson’s name. Wright now appeals.
Discussion and Decision
Wright argues that the trial court’s judgment was erroneous and should be reversed.
We note that Wright did not include a copy of the trial court’s September 13, 2004, order in his brief. Pursuant
to Indiana Appellate rule 46(A)(10), an appellant’s brief “shall include any written opinion, memorandum of decision or
I. Standard of Review
In its September 13, 2004, order, the trial court entered findings of fact and
conclusions of law. When a trial court enters findings of fact and conclusions of law, we
must first determine whether the evidence supports the findings and then whether the
findings support the judgment. Lake County Trust Co. v. Jones, 821 N.E.2d 1, 3 (Ind. Ct.
App. 2004). We will only set aside a trial court’s findings of fact and conclusions of law if
they are clearly erroneous. Id. Findings and conclusions are clearly erroneous when the
record contains no facts or inferences supporting them. Id. “A judgment is clearly erroneous
when a review of the record leaves us with the firm conviction that a mistake has been
made.” Id. When a trial court’s judgment contains findings of fact and conclusions of law,
we will neither reweigh the evidence nor assess the credibility of witnesses, and we will only
consider the evidence most favorable to the judgment. Id.
II. Grantee Can Bring a Claim for Reformation
Sampson argues that the trial court properly denied Wright’s request to reform his and
Sampson’s deeds because Wright was not entitled to make such a request. She notes that in
East v. Pedin, 108 Ind. 92, 97, 8 N.E. 722, 724 (1886), our supreme court stated, “In all cases
of mistake in written instruments, courts of equity will interpose their aid between original
parties, or those claiming under them in privity, but on behalf of persons not thus connected,
courts of chancery do not lend their aid.” Sampson contends that because Wright is not in
privity with her or Ray, he is not entitled to seek reformation of the deeds. 2 She also asserts
findings of fact and conclusions thereon relating to the issues raised on appeal.”
Sampson also contends that Wright is not entitled to bring a claim for reformation of the deeds because he
that the proper party to bring a claim for reformation of the deeds was Ray.
However, we conclude that Wright is entitled to bring a claim for reformation of the
deeds because he is in privity with Ray. The above statement of the law made by our
supreme court in East is still valid today. This is evidenced by our recent statement that
“[t]he general rule is that one must be a party to or in privity with a party to the deed to be
entitled to reform a deed.” Payton v. Hadley, 819 N.E.2d 432, 440 n.7 (Ind. Ct. App. 2004)
(citing 66 Am. Jur.2d Reformation of Instruments § 58 (2001)). We noted that ‘“[p]rivity is
defined as the mutual or successive relationship to the same rights of property, title, or
estate.”’ Id. (quoting 66 Am. Jur.2d Reformation of Instruments § 59 (2001)). We
specifically pointed out that ‘“[a] grantee of property succeeds to the grantor’s right to
maintain a suit to reform a prior deed.”’ Id. (quoting 66 Am. Jur.2d Reformation of
Instruments § 59 (2001)). We have also explained that a party that is in privity with a party
to the deed would include “personal representatives, heirs, devisees, legatees, assignees,
voluntary grantees, or judgment creditors, or purchasers from them with notice of the facts.”
Earl v. Van Natta, 29 Ind. App. 532, 64 N.E. 901, 904 (1902).
Here, Wright can bring a claim requesting the reformation of the deed given to him by
does not have standing and is not a real party in interest. We disagree. Standing “refers to the question of whether a
party has an actual demonstrable injury for purposes of a lawsuit.” Union Township School Corp. v. State ex. rel. Joyce,
706 N.E.2d 183, 187 (Ind. Ct. App. 2004), trans. denied. “A plaintiff has standing if: (1) he can demonstrate a personal
stake in the outcome of the lawsuit, and (2) he can show that he has sustained or was in immediate danger of sustaining
some direct injury as a result of the conduct at issue.” Id. Here, Wright has a personal stake in the outcome of the
lawsuit because he is entitled to a portion of the twenty-five acre parcel. Wright will also sustain a direct injury if the
deeds are not reformed and title is quieted in Sampson’s name because he will have lost his interest in the property.
Therefore, Wright does have standing to seek reformation of the deeds.
With regard to whether Wright is a real party in interest, we have previously stated that a real party in interest is
the person who is the true owner of the right sought to be enforced, and is the person who is entitled to the fruits of the
action. Id. The purpose of Wright’s counterclaim is to reform the deeds such that both he and Sampson receive a share
of the twenty-five acre parcel. If Wright is successful in his counterclaim, then he will be entitled to the fruits of the
action in that he will receive a share of the property. Therefore, Wright is a real party in interest.
Ray because he was a party to the deed. Wright can also bring a claim requesting the
reformation of the deed Ray gave to Sampson because Wright is in privity with a party to that
deed, namely Ray. Wright is in privity with Ray because he is a voluntary grantee, and
because he has a successive relationship to Ray’s property rights to a portion of the twentyfive acre parcel. Therefore, Wright is entitled to bring a claim for the reformation of both his
and Sampson’s deeds.
III. Reformation of Deed Based on Unilateral Mistake
The trial court concluded that Wright’s claim for reformation of the deeds must fail
because he did not introduce any evidence demonstrating a mutual mistake or fraud. Wright
contends that this conclusion was erroneous. He asserts that a trial court can reform a deed
that has been given to a grantee as a gift if it is shown that the grantor made a unilateral
mistake in executing the deed.
The trial court is correct that generally “to succeed in a reformation action a party
must show either mutual mistake or fraud by clear and convincing evidence.” Meyer v.
Marine Builders, Inc., 797 N.E.2d 760, 771 (Ind. Ct. App. 2003); see also Estate of Reasor v.
Putnam County, 635 N.E.2d 153, 160 (Ind. 1994). However, both Meyer and Estate of
Reasor involved contracts, in that the grantor deeded property to the grantee in exchange for
some type of compensation. Here, though, Ray gave Sampson and Wright their deeds as
gifts. In reformation cases, courts in other states have drawn a distinction between deeds that
are given in exchange for some type of compensation, and thus are contractual in nature, and
those that are given as gifts. The Kentucky Court of Appeals has noted that, as a basis for
reformation of a deed, mutuality of mistake “need only be established when there is a
mutuality of obligation, as in a contractual relationship.” Twyford v. Huffaker, 324 S.W.2d
403, 406 (Ky. Ct. App. 1958). The court went on to state that “where property is conveyed
as a gift, the transaction is by its very nature unilateral, and the grantee’s intent or conduct
(other than acceptance) plays no part in fixing the rights of the parties.” Id. Stated perhaps
more succinctly, “a gift is unilateral in its nature and, consequently, only a unilateral mistake
can occur.” Schulz v. Miller, 837 P.2d 71, 76 (Wyo. 1992). The distinction then between a
deed given in exchange for some form of compensation and a deed given as a gift lies in the
obligations incurred by the grantor and grantee. When a deed is exchanged in a contractual
relationship, both the grantor and grantee are obligated to perform in some type of fashion,
which creates the opportunity for a mutual mistake to occur. Whereas, when a deed is given
as a gift, the grantor is the only party with an obligation, and, thus, only a unilateral mistake
is likely to occur.
Based on this distinction, several courts have concluded that a deed may be reformed
for a unilateral mistake made by the grantor where the property is conveyed as a gift. See
Yano v. Yano, 697 P.2d 1132, 1135 (Ariz. Ct. App. 1985) (holding that reformation of a deed
may be granted on the application of the grantor of a voluntary conveyance on the basis of a
unilateral mistake); Davidson v. Lane, 566 S.W.2d 891, 892 (Tenn. Ct. App. 1978) (holding
that a court of equity will reform a voluntary conveyance made without consideration, to
reflect the intention of the grantor); Westcott v. Westcott, 259 N.W.2d 545, 548 (Iowa Ct.
App. 1977) (holding that voluntary conveyances are unilateral and that a trial court has the
power to reform a deed to express the intentions of the grantor even though there has been no
mutual mistake); Nelson v. Harris, 232 S.E.2d 298, 300 (N.C. Ct. App. 1977) (holding that
the grantor of a conveyance for which no consideration was given by the grantee is entitled to
reformation when the deed fails to express the actual intent of the parties due to the grantor’s
unilateral mistake); Twyford, 324 S.W.2d at 406.
Wright argues that our supreme court adopted the same position in Andrews v.
Andrews, 12 Ind. 348 (1859). In that case, the grantor, Andrews, gave certain property to his
mother, the grantee, as a gift. The deed gave title to the mother in fee simple. Andrews
alleged that this was a mistake and that the mother should only have received a life estate in
the property. Andrews filed suit for reformation of the deed, but the trial court dismissed his
complaint. Our supreme court reversed the trial court’s decision. Id. at 349. The court
stated, “It is a general proposition of law, that a deed drawn by mistake, for a different
interest than that intended to be conveyed, may be corrected, if the mistake be clearly proved.
We do not see why a deed of gift should form an exception.” Id. at 348-49 (citation
omitted). The federal district court for the Southern District of Indiana recently considered
the Andrews opinion and concluded that “[a]t most, Andrews stands for the proposition that a
unilateral mistake is a sufficient ground for reformation of a voluntary conveyance of
property if the mistake can be clearly proved.” Seufert v. Mulzer, 2000 WL 1358527, *5
(S.D. Ind. 2000). We agree with this conclusion and therefore hold that a deed given as a gift
can be reformed if the party seeking reformation of the deed proves by clear and convincing
evidence that a unilateral mistake was made in the execution of the deed.
However, our supreme court has also long held that although a voluntary deed, such as
a deed given as a gift, will be corrected of mistakes upon the application of the grantor
against the grantee, such mistakes in a voluntary deed will not be corrected upon the
application of the grantee against the grantor. Randall v. Ghent, 19 Ind. 271, 272 (1862).
The purpose for such a rule is well explained by the Supreme Court of Montana in
Laundreville v. Mero, 281 P. 749 (Mont. 1929). There, that court stated that “[t]he reason for
the rule is that when one accepts the bounty of another he may not be heard to say, as against
the donor, that something else should have been given. The grantor, not having received any
consideration for the conveyance, is accorded the privilege of changing his mind and may not
be compelled to make a gift previously intended and of which he has since repented, when no
rights of others have intervened.” Id. at 750 (citation omitted). Here, though, Wright is not
seeking reformation of the deeds as against Ray, the grantor, but against his fellow grantee,
Sampson. Therefore, the rule announced by our supreme court in Randall does not bar
Wright from seeking reformation of the deeds.
The question, though, remains whether it is permissible for a grantee to bring suit
against his fellow grantee for reformation of their deeds. In Simms v. Simms, 249 N.Y.S.
171 (N.Y. Sup. 1931), the New York Supreme Court faced a situation similar to the one here
in that a grantee had brought suit against a fellow grantee for reformation of their respective
deeds. In that case, the grantor owned two pieces of adjoining property known as lot No. 132
and lot No. 133. The grantor built his home on lot No. 133 believing it was lot No. 132. The
grantor then executed two deeds. The first deed gave title to lot No. 132 to the grantor’s
wife, while the second deed gave the grantor’s son title to lot No. 133. Both of these deeds
were given as gifts. After the grantor’s death, the son asserted that, pursuant to his deed, he
was entitled to possession of lot No. 133 and the house located thereon. The wife brought
suit seeking reformation of her and the son’s deeds.
The New York Supreme Court first concluded that the wife had established that it was
the grantor’s intent to give the wife title to lot No. 133 and the son title to lot No. 132. Id. at
173. The court then stated that the general rule is that “equity will not reform a voluntary
conveyance in a suit brought by the grantee against the grantor.” Id. The court determined
that this rule did not apply though because the controversy was between two grantees. Id. at
174. The court concluded that
Under [these] circumstances, equity not only has the right, it is under a duty, to
correct the mistake which has been made. Neither principle nor precedent
stands in the way of affording the relief necessary to give effect to the true
intent of the parties, and thus to accomplish a just result. This is indeed a case
where ‘the plastic remedies of the chancery are moulded to the needs of
justice.’ Foreman v. Foreman, 251 N.Y. 237, 242, 167 N.E. 428, 429. The
two deeds will accordingly be reformed.
We agree with the Simms analysis and conclude that it is permissible for a grantee to
bring suit against a fellow grantee for the reformation of their respective deeds. Therefore,
Wright’s suit against his fellow grantee Sampson is not barred.
Here, the trial court concluded that Wright’s counterclaim for reformation of his and
Sampson’s deeds must fail because he failed to present any evidence of mutual mistake or
fraud. This conclusion was erroneous because a trial court can reform a deed upon the
application of a grantee if the grantee proves by clear and convincing evidence that a
unilateral mistake has been made. Therefore, the trial court’s judgment with regard to
Wright’s counterclaim must be reversed.
IV. Exclusion of Witnesses from Testifying
At trial, Wright attempted to have Ray and attorney Thomas Keith testify. Sampson
argued that they should not be allowed to testify because the statute of frauds and the parol
evidence rule barred their testimony. The trial court sustained Sampson’s objection, and
Wright made an offer to prove what Ray and Keith’s testimony would have been. Wright
now argues that the trial court’s decision to not allow Ray and Keith to testify was erroneous.
We first consider whether Ray and Keith were barred from testifying because of the
statute of frauds. Indiana’s statute of frauds states in relevant part:
(b) A person may not bring any of the following actions unless the promise,
contract, or agreement on which the action is based, or a memorandum or note
describing the promise, contract, or agreement on which the action is based, is
in writing and signed by the party against whom the action is brought or by the
party’s authorized agent:
(1) An action charging an executor or administrator, upon any special
promise, to answer damages out of the executor’s or
administrator’s own estate.
(2) An action charging any person, upon any special promise, to
answer for the debt, default, or miscarriage of another.
(3) An action charging any person upon any agreement or promise
made in consideration of marriage.
(4) An action involving any contract for the sale of land.
(5) An action involving any agreement that is not to be performed
within one (1) year from the making of the agreement.
(6) An action involving an agreement, promise, contract, or warranty
of cure concerning medical care or treatment. However, this
subdivision does not affect the right to sue for malpractice or
Ind. Code § 32-21-1-1.
The purpose of the statute of frauds is to bar certain actions on promises, contracts, or
agreements that are not placed in writing. The statute of frauds does not bar witnesses from
testifying, and, thus, should not have barred Ray and Keith from testifying here.
The trial court also concluded that Ray and Keith were barred from testifying because
of the parol evidence rule. We have previously stated that “[i]n general, where the parties to
an agreement have reduced the agreement to a written document and have included an
integration clause that the written document embodies the complete agreement between the
parties . . . the parol evidence rule prohibits courts from considering parol or extrinsic
evidence for the purpose of varying or adding to the terms of the written contract.” Krieg v.
Hieber, 802 N.E.2d 938, 943 (Ind. Ct. App. 2004). Here, the parol evidence rule would have
barred Ray and Keith from testifying if the deeds at issue were considered contracts.
However, Wright and Sampson’s deeds were not contracts because they were given as gifts.
Because there are no contracts at issue here, the parol evidence rule does not apply and does
not bar Ray and Keith from testifying.
Therefore, the trial court’s conclusion that Ray and Keith were barred from testifying
because of the statute of frauds and the parol evidence rule was erroneous and requires
reversal of the trial court’s judgment with regard to Wright’s counterclaim.
Wright is entitled to bring a claim for reformation of his and Sampson’s deeds because
he is in privity with Ray. A trial court can reform a deed that has been given as a gift if the
party seeking reformation proves by clear and convincing evidence that a unilateral mistake
was made in the execution of the deed. We also hold that the trial court erred in barring Ray
and Keith from testifying because the statute of frauds and the parol evidence rule do not bar
their testimony. The trial court’s judgment on Wright’s counterclaim is therefore reversed,
and we remand the case back to the trial court for a new trial solely on Wright’s
counterclaim. If Wright is able to prove by clear and convincing evidence that a unilateral
mistake was made by Ray in executing the deeds given to Wright and Sampson, then the trial
court should reform the deeds to reflect Ray’s true intentions.
Reversed and remanded.
FRIEDLANDER, J., and BAILEY, J., concur.