ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
JOSEPH A. COLUSSI LARRY L. EATON
Madison, Indiana Versailles, Indiana
COURT OF APPEALS OF INDIANA
SULVAN BOWLING, JR., and, )
BARBARA BOWLING, )
vs. ) 69A01-0105-CV-173
JOYCE POOLE, )
APPEAL FROM THE RIPLEY SUPERIOR COURT
The Honorable James B. Morris, Judge
Cause No. 69D01-9810-CP-065
October 10, 2001
Once again, our courts are called upon to interpret the order of preference
for the location of boundaries in a real property dispute. Appellants-plaintiffs Sulvan
Bowling, Jr., and Barbara Bowling (collectively, the Bowlings) appeal the trial courts judgment
denying their contract claim against appellee-defendant Joyce Poole. They claim that there
was no mutual mistake of fact in the formation of the-sale contract and
that the description of the land was adequate and unambiguous.
This case arises from a real estate transaction between two neighbors who owned
adjoining farms in Ripley County. The Bowlings owned a 125-acre farm to
the south and east of Pooles 37-acre farm. According to the Bowlings,
sometime during the spring of 1998, Poole stopped at the Bowlings farm and
told Barbara that she was thinking about selling her farm. Barbara told
Poole that she would be interested in buying Pooles farm.See footnote Several days
later, Poole telephoned the Bowlings, asking that Barbara come to Pooles farm and
make an offer. During the telephone conversation, Poole remarked that she was
not sure whether she would sell the front tract or the back tract
of the property, but that she would sell the house.
Barbara examined Pooles property and asked Poole to name her price. Afterward,
Poole telephoned Barbara once more, this time offering to sell only the unimproved,
eastern tract adjoining the Bowlings farm. Poole said that she wanted to
keep her house and a surrounding tract of improved land. Poole offered
the eastern tract for $15,000.
At trial, Poole saw the meeting with Barbara from a different perspective.
Poole testified about the amount of land she considered selling and the price:
We kind of, [i]t was kind of vague, what we talked about were
the three acres that I knew, and I said that there were three
acres over there that would be real nice for you . . .
. So anyway, then she said well Im interested in the other
acreage, well we didnt get to cost charges, on the other acres in
our conversation. R. at 48. Then, when asked if they talked about
price at all that day, Poole responded: I dont think so, I think,
well we probably, there is no probably about it[.] R. at 48.
Barbara later went to the site to examine the eastern tract, thinking that
she would buy the land between the road that currently separated their two
properties and a creek that ran roughly parallel to that road. The
two women walked out the land and described the borders of the proposed
parcel. While they were examining the property, Poole suggested that the land
fifteen feet west of the creek ought to be included in the sale.
Poole explained that if the Bowlings ever needed to clean out the
creek or erect a fence, the fifteen feet of land to the west
of the creek would afford easier access to vehicles. After they completed
their walk of the property, Poole told Barbara the price would be $15,000.
R. at 13. Barbara said that she and her husband would
have to contact their bank to finance the purchase. At trial, Poole
testified about her recollection of the transaction: Well, I said three acres $15,000
and then the other [half] wed talk about it. R. at 50.
After their initial walk around the property, Pooles adult son then arrived, followed
shortly thereafter by Pooles boyfriend. Poole said that she had previously surveyed
a three-acre portion at the south end of the eastern tract in 1994
or 1995, believing that her son might put a mobile home on it.
Poole said that they would need a new survey for the entire
eastern tract and that the same survey company could survey the eastern tract
because its surveyor knew the land. All four walked the south boundary
line to make sure that Poole would still have access to the western
tract she was retaining and that the Bowlings would have access to the
eastern tract they were purchasing. According to Barbara, everyone agreed that Poole
would still have access to the western tract if the west boundary line
of the eastern tract was placed fifteen feet to the western edge of
Afterwards, the Bowlings called the Ripley County Bank to obtain a $15,000 loan
to purchase the eastern tract. Frank Samples, the senior loan officer, told
the Bowlings that they would need a written purchase agreement. Samples sent
Barbara the banks generic one-page purchase-agreement form for Barbara and Poole to use.
But Barbara was unsure how to fill out the form because there
was no separate deed or survey available describing the eastern tract. When
she called Samples for assistance, he told her to fill out the description
by describing the north, south, east, and west boundary lines as they would
appear to someone standing on the eastern tract. Bowling related that Poole
and her son had said that a three-acre portion of the tract had
been previously surveyed and contained about three acres. Samples told Barbara to
include in the description that the property was three acres, more or less.
R. at 17.
Barbara filled in the blank spaces on the form. She described in
her handwriting the land that Poole was selling to the Bowlings:
3 Ac, more or less[,] East bound[a]ry being Farmers Retreat Road[,] South bound[a]ry
being 375 South[,] North bound[a]ry being north bound[a]ry of Joyce Poole farm[,] West
bound[a]ry being 15 feet west of sm. creek between Joyce Poole Home and
Farmers Retreat Road to run from 375 South to north bound[a]ry of Joyce
Appellants App. at 8. The blank for the purchase price was filled
in as $15,000, while the earnest money blank was marked as $50.00.
Closing was set for ninety days. The agreement was dated July 21,
Barbara and Poole reviewed the agreement in Pooles living room on July 21,
1998. According to Barbara, Poole read the agreement, including the description, and
told her that it was just fine. R. at 20. After
Barbara gave Poole the $50 earnest money, Poole signed the agreement. But at
trial, when asked on direct examination whether she had read the agreement, Poole
responded, Not very well. R. at 52. Then, when first asked
whether she had read the legal description, she answered, Not very well.
R. at 52. Poole later testified that she had not read the
description at all before signing the agreement. R. at 53.
Barbara brought the purchase agreement to the bank, and Samples approved the loan.
Samples told Barbara that the loan would close after the survey was
completed. Poole asked Barbara to call the surveying company. When Barbara
called the surveying company, the company told her Poole would have to sign
a request form. The company sent the form to Barbara who, in
turn, brought the form to Poole. Poole read and signed the form,
and Barbara returned it to the company.
According to Barbara, the surveyor met with Barbara and Poole at Pooles home.
Poole told the surveyor to survey the west boundary line of the
tract at fifteen feet west of the creek. The surveyor, however, placed
the survey markers fifteen feet west of the center of the creek, not
fifteen feet west of the western edge of the creek. Poole later
noticed that the surveyor had placed the markers from the center of the
creek. She called the surveyor, requesting that a new survey be done
with the markers placed fifteen feet west of the western edge of the
The surveyor subsequently resurveyed the tract. Poole, who was caring for an
ill relative at the time, asked Barbara to pick up the completed survey.
The survey required Pooles notarized signature, so on September 8, 1998, Barbara
and Poole met at the Ripley County Bank to have the survey signed
and notarized. Poole reviewed the survey at the bank and signed it
before a notary. The actual acreage of the property was nearly six
acres. Barbara then recorded the survey at Pooles request.
A week or so later, Samples called Poole to set a time to
close the transaction. Poole told Samples that she was not going to
sell the property and would not close. She later sent the Bowlings
a letter, telling them that she would not sell the property, and returned
the $50 earnest money to them.
The Bowlings subsequently filed a cause of action against Poole, seeking specific performance,
and recorded a
lis pendens notice against the eastern tract. While litigation
was pending, Poole sold the western tract, including her home, in two separate
transactions to other buyers. The eastern tract has not been sold and
remains intact. After a bench trial, the trial court made findings of
fact and conclusions, entering judgment in favor of Poole.
In relevant part, the findings provided:
1. The description of the real estate contained in the offer and
acceptance dated July 21, 1998, signed by the parties called for the sale
of three acres more or less to the Plaintiff.
2. The Boundary description of the real estate in the offer and
acceptance circumscribed 5.987 acres being nearly double the acres the Defendant believed she
3. Defendant refused to continue with the sale when she realized the
error.. . .
6. That both Plaintiff and the Defendant were mistaken as to the
amount of real estate to be sold.
7. That the parties were not in agreement at the time the
contract was made.
8. That the mutual mistake by both parties resulted in a failure
of the meeting of the minds.
Appellants App. at 4. The Bowlings now appeal.
DISCUSSION AND DECISON
I. Standard of Review
When, as here, a trial court enters specific findings of fact and conclusions
on its own motion, we will not set aside such findings or judgment
unless clearly erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses. Ind.Trial Rule
52(A). The findings are clearly erroneous only when a review of the
record leaves us firmly convinced a mistake has been made. Carnahan v.
Moriah Property Owners Assn, 716 N.E.2d 437, 443 (Ind. 1999). We disturb
the judgment only when there is no evidence supporting the findings or the
findings fail to support the judgment. Yoon v. Yoon, 711 N.E.2d 1265,
1268 (Ind. 1997). We do not reweigh the evidence; rather, we consider
the evidence most favorable to the judgment with all reasonable inferences drawn in
favor of the judgment. Id. A judgment is clearly erroneous if
it relies on an incorrect legal standard. Shell Oil Co. v. Meyer,
705 N.E.2d 962, 972 (Ind. 1998).
With respect to contract disputes, we note that the primary purpose in construing
a document is to ascertain and give effect to the parties mutual intent.
Hutchinson, Shockey, Erley & Co. v. Evansville-Vanderburgh County Bldg. Auth., 644 N.E.2d
1228, 1231 (Ind. 1994). When a court is asked to interpret an
agreement, it is necessary for the court to examine the parties intent when
they drafted the document.. Kelly v. Smith, 611 N.E.2d 118, 121 (Ind.
1993). The intention of the parties to a written contract must be
derived from their written expressions within the four corners of the contract.
Gyr v. Hagemann, 130 Ind. App. 212, 221, 163 N.E.2d 620, 624 (1960).
Contracts for the sale of land must be specifically enforced as written
without any additions or deletions by the court. See id.
II. The Bowlings Claims
The Bowlings argue that the trial court erroneously determined that the agreement regarding
the sale of the property was the result of a mutual mistake of
fact. They also assert that the description of the property was unambiguous
and the boundaries of the land to be sold were clearly established.
Therefore, the Bowlings contend that they are entitled to specific performance because it
is apparent that Poole simply changed her mind about selling the property.
In accordance with the doctrine of mutual mistake, [w]here both parties share a
common assumption about a vital fact upon which they based their bargain, and
that assumption is false, the transaction may be avoided if because of the
mistake a quite different exchange of values occurs from the exchange of values
contemplated by the parties. Wilkin v. 1st Source Bank, 548 N.E.2d 170,
172 (Ind. Ct. App. 1990) (emphasis supplied). It is not enough
that both parties are mistaken about any fact; rather, the mistaken fact complained
of must be one that is of the essence of the agreement, the
sine qua non, or, as is sometimes said, the efficient cause of the
agreement, and must be such that it animates and controls the conduct of
the parties. Jackson v. Blanchard, 601 N.E.2d 411, 416 (Ind. Ct. App.
1992) (quoting 17A Am. Jur. 2d Contracts § 213 (1991)).
Here, we note that the eastern tract was specifically described in the July
21, 1998 written agreement. The evidence presented at trial demonstrated that the
use of three acres in the description only arose because Poole told Mrs.
Bowling that a three-acre survey had been completed on part of the eastern
tract four or five years earlier. No one knew the precise acreage,
because the survey was yet to be ordered and completed when the parties
signed the agreement on July 21, 1998. The full description called for
the sale of the eastern tract of Mrs. Pooles farm as defined by
the four boundary lines. Mrs. Poole gave no indication that the amount
of land to be surveyed was anything other than the entire eastern tract
as described in the written agreement she signed. Moreover, the lump sum
price of $15,000 to be paid for the entire eastern tract was included
in the agreement. Under these circumstances, it is apparent that the acreage
was never the essence of the parties agreement. There was no evidence that
either Poole or the Bowlings were mistaken about the actual tract of land
to be sold. Poole had previously walked the property and a three-acre
portion of the eastern tract had been surveyed in 1994 or 1995.
Thus, it is apparent that Poole should have known that the entire
eastern tract was larger than the three acres reflected in the earlier survey.
The evidence does not support a conclusion that there was a mutual
mistake. Rather, the land was precisely described and the price was firmly
established. In sum, it is apparent that the evidence, at best, points
to a unilateral claim of mistake on Pooles part.
In addition to the above, we note that with respect to land descriptions,
this court has held that the order of preference for the location of
boundaries is in descending order as follows: natural objects or land marks, artificial
monuments, adjacent boundaries, courses and distances, and lastly quantity. Hollars v. Stephenson,
121 Ind. App. 410, 419, 99 N.E.2d 258, 262 (1951). The Hollars
court emphasized, On the question of acreage, the courts have held that the
quantity of land contained in a tract is the least important element in
determining the boundary. Id. (quoting Gary Land Co. v. Griesel, 179 Ind.
204, 100 N.E. 673, 675 (1913)).
As our supreme court recognized long ago, an in gross sale of land
involves the sale of a specific tract of land for a stipulated price
for the whole tract. King v. Brown, 54 Ind. 368, 373 (Ind.
1876) (describing the transaction as a contract for the sale of a specific
tract, not by the acre but in gross, at a stipulated price for
the whole farm owned and occupied by the seller). In King, our
supreme court specifically enforced a contract for the sale of a farm where
the contract described the farm as four hundred and fifty-one acres, more or
less. Id. at 374. During negotiations over the land sale,
the sellers informed the buyers that the farm had not been surveyed but
that they believed the acreage was 451. After the contract was drafted,
a survey later showed that the farm was actually 410 acres. Our
supreme court held that the number of acres was not of the essence
of the contract, reasoning that when the words more or less are added,
if there be a small portion more than the quantity, the vendor can
not recover it; and if there be a small quantity less, the purchaser
can not obtain any compensation in respect of the deficiency; and even a
large excess or deficiency has not been considered a ground for relieving a
vendor or purchaser. Id. at 375 (emphasis added) (quoting Sugden on Vendors);
see Langsdale v. Girton, 51 Ind. 99, 102 (1875).
Here, it is apparent that the contract called for an in gross sale
of land as opposed to a per acre sale of land. Thus,
the description of 3 Ac more or less had to be considered in
context with the remainder of the agreement. A basic rule of contract
construction provides that when a contract contains general and specific provisions relating to
the same subject, the specific provision controls. Askren Hub States Pest Control
Servs., Inc. v. Zurich Ins. Co., 721 N.E.2d 270, 280 n. 2 (Ind.
Ct. App. 1999). Here, the four sides of the eastern tract were
specifically described. Moreover, as discussed above, it is apparent that the number
of acres specified in the written agreement was not the essence of the
contract. Therefore, the trial court erred in entering judgment for Poole.
In light of our discussion above, we conclude that the trial court erred
in concluding that a mutual mistake occurred between the Bowlings and Poole with
regard to the sale of the real property. Moreover, the eastern tract
was specifically described in the written agreement, and we cannot say that the
contract provided for a per acre sale of the land. Thus, the
trial court erred in entering judgment for Poole.
The judgment is reversed and this cause is remanded to the trial court
with instructions that it enter a final decree for the Bowlings with respect
to their action for specific performance, and for all other proceedings consistent with
NAJAM, J., and KIRSCH, J., concur.
We would like to thank counsel for their excellent briefs
and participation in the oral argument that took place at the Orange County
Circuit Court on September 20, 2001. We also express our appreciation to
the Honorable Larry Blanton, judge of the Orange Circuit Court, and his staff,
along with the County Sheriffs Department for their security efforts. We extend
our thanks to the students and teachers who attended the argument, and we
appreciated their participation in the question and answer session in connection with our
Footnote: Poole, to the contrary, maintained at trial that Barbaras son
and later Barbara herself approached Poole about buying the land. Record at
Footnote: In her statement of facts on appeal, Poole asserts that
Barbara paid for the survey and cites to page 33 of the trial
transcript for support. Appellees brief at 2. However, as the Bowlings
point out, page 33 of the transcript does not support such an assertion.
Appellants reply brief at 4. The transcript indicates only that the
survey form itself made no mention that Poole was required to pay for
the survey. R. at 33. Furthermore, the Bowlings have included in
the appendix to their reply brief a purported copy of the survey companys
letterhead containing a handwritten note that Poole paid the survey company $760.00 for
the survey. Appellants reply brief at 10. However, [f]actual material
which was not part of the record in the trial court cannot be
made part of a case on appeal merely by including it in an
appendix to a partys brief.
Chesterfield Mgmt., Inc. v. Cook, 655 N.E.2d
98, 101 (Ind. Ct. App. 1995), trans. denied.