Perfect v. McAndrew

798 N.E.2d 470, 2003 Ind. App. LEXIS 2098, 2003 WL 22662447
CourtIndiana Court of Appeals
DecidedNovember 12, 2003
Docket15A05-0303-CV-139
StatusPublished
Cited by15 cases

This text of 798 N.E.2d 470 (Perfect v. McAndrew) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perfect v. McAndrew, 798 N.E.2d 470, 2003 Ind. App. LEXIS 2098, 2003 WL 22662447 (Ind. Ct. App. 2003).

Opinion

OPINION

SHARPNACK, Judge.

Clyde and Ella Mae Perfect (the "Perfects") appeal the trial court's judgment granting specific performance of a contract to sell real estate to Michael E. McAn-drew. The Perfects raise four issues, which we consolidate and restate as:

I. Whether the trial court's finding that the parties intended an "in gross" sale of real estate is clearly erroneous;
II. Whether the trial court's finding that there was no mutual mistake of fact is clearly erroneous; and
Whether the trial court's judgment improperly added a provision to the contract. IIL.

We affirm.

The relevant facts follow. In the spring of 1999, McAndrew became interested in purchasing real estate in Dearborn County, Indiana from the Perfect. 1 Based upon acreage listed in the deed conveying the property to the Perfects, the Perfects thought that the property consisted of 81.1 acres. On April 20, 1999, McAndrew offered to purchase the real estate from the Perfects for $250,000.00. The offer described the property as "Anderson Rd, 81.1 acres owned by Perfects." Plaintiffs Exhibit 4 at 1. On April 21, 1999, the Perfects countered with a purchase price of $252,500.00. On April 23, 1999, McAn-drew, his wife, and Ashley Howe and Betsy Bates, real estate agents with StarOne Realtors, met with Clyde Perfect to view the property and its boundaries. Clyde could not walk the property because of an *473 injury to his knee. However, he rode his tractor along much of the boundary while the others walked. When they encountered an area that Clyde could not traverse with his tractor, Clyde described the remaining boundaries to the McAndrews and the real estate agents. The McAn-drews and the real estate agents then walked the remaining boundaries. MecAn-drew never had any conversations with the Perfects regarding the acreage of the property. After inspecting the property, McAndrew accepted the Perfects' counteroffer of $252,500.00.

The contract provided, in part, that:

[MeAndrew] shall apply for financing within 10 calendar days after acceptance of this Contract and will make a diligent effort to obtain financing. If [MceAn-drew] or [MeAndrew's] lender does not notify Listing REALTOR or [the Perfects], in writing, that a loan commitment has been obtained, denied or waived by May 20, 1999, then [the Perfects] may, by written notice to selling REALTOR or [McAndrew], terminate this Contract.

Id. The contract also provided for the following contingencies:

1. Satisfactory septic [MeAndrew] ). approval (to
2. Satisfactory to [McAndrew] survey to be [paid] by [McAndrew] and [the Perfects] equally.
3. Satisfactory to [MeAndrew] verification of easements on property.
4. [The Perfects} to remove all debris-junk around barn area and along property line as discussed.
5. Satisfactory to [McAndrew] verification of lot lines A.S.A.P.

Id. at 2.

On May 11, 1999, McAndrew advised Bates that he had secured a loan. MeAn-drew received a written loan commitment on May 21, 1999, and signed the commitment on May 25, 1999. On approximately June 20, 1999, the Perfects removed the junk and debris from the property. The survey was completed on June 24, 1999, and indicated that the property contained 96.2815 acres rather than 81.1 acres. After receiving the survey, Clyde "was quite surprised and thought about it for a while and decided [he] didn't want to give away 15 acres." Transcript at 83.

On July 8, 1999, the Perfects attempted to renegotiate the contract with three different proposals: (1) McAndrew would purchase the 96.2815 acres for an additional $35,000.00; (2) McAndrew would purchase 81 acres for $230,000.00 and the Perfects would keep 15.30 acres with west frontage on Anderson Road; or (8) MceAn-drew would purchase sixty acres on the east side of the property for $200,000.00. McAndrew rejected the new proposals and sought to close on the property pursuant to the contract. On August 4, 1999, the Perfects sent a letter to Howe attempting to terminate the contract because MceAn-drew had failed to provide a timely written notice of a loan commitment. Prior to this letter, the Perfects had not advised MeAn-drew or Howe of any problems regarding the timeliness of McAndrew's loan commitment. The Perfects then refused to convey the property to McAndrew.

McAndrew filed a complaint against the Perfects for specific performance. MecAn-drew also filed a motion for findings of fact and conclusions thereon pursuant to Ind. Trial Rule 52. After a bench trial, the trial court entered the following judgment:

1. On April 23, 1999, the parties entered into a contract for [MeAn-drew] to buy and the [Perfects] to sell certain real estate located in Dearborn County, Indiana. The real estate was described simply as "Anderson Rd. 81.1 acres owned by *474 Perfects." The [Perfects] are husband and wife, but the land in question is presently titled only in the name of Ella Mae Perfect.
2. On April 23, 1999, the parties met at the real estate and [MeAndrew] and [Clyde Perfect] discussed the boundaries of the property. The parties agreed upon what land was being bought and sold.
3. A survey was required by the terms of the contract to purchase the real estate, to be paid equally by the parties. That survey was completed by registered land surveyor Roger W. Woodfill by survey dated June 24, 1999. A copy of the real estate description prepared by the surveyor is attached to this Judgment and Order as Exhibit A. That survey shows the land contains 96.2815 acres.
4. The [Perfects] were surprised when they received the survey and discovered the land contained more acreage than they thought. At that point, for the first time, they had second thoughts about the sale.
5. On the issue of what land was intended to be bought and sold there was a meeting of the minds. There was no ambiguity, no fraud, no misrepresentation, and no equitable circumstances that would indicate otherwise. This was an in gross sale of the land owned by the Defendant Ella Mac Perfect. It had been described in the deed both [the Perfects] received as containing 83.08 acres. Two one acre tracts were subsequently sold off that tract. The tract was described in a plat book as containing 81 acres. But, the [Perfects] definitely intended to sell and [MeAn-drew] intended to buy the entire tract. Only when the survey demonstrated more acreage did the [Perfects'] position change. In such an event the sale of the specific tract will prevail over acreage. See Bowling v. Poole, (Ind.App.2001) 756 N.E.2d 983. See also King v. Brown, (Ind.1876) 54 Ind. 368, and Langsdale et al. v. Girton Ex'r, 51 Ind. 99, 1875 WL 5869 (1875). See also Cravens v. Kiser, (Ind.1853) 4 Ind. 512 for a statement of the general rule. See also Lehman v. Pierce, 109 Ind.App. 497, 36 N.E.2d 952

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Bluebook (online)
798 N.E.2d 470, 2003 Ind. App. LEXIS 2098, 2003 WL 22662447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perfect-v-mcandrew-indctapp-2003.