                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                            July 13, 2001 Session

                 PEGGY J. LANE, ET AL. v. LUELLA SPRIGGS, ET AL.

                          Appeal from the Chancery Court for Cocke County
                           No. 98-113   Telford E. Forgety, Jr., Chancellor

                                              FILED OCTOBER 19, 2001

                                       No. E2001-00163-COA-R3-CV


This case involves the validity of an unsigned warranty deed in the plaintiffs’ chain of title.
Following a bench trial, the court below reformed the deed to add the missing signature. The
defendants appeal, arguing, among other things, that the unsigned deed is inoperative and cannot be
reformed. We affirm.

             Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                  Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.

Douglas E. Taylor, Sevierville, Tennessee, for the appellants, Luella Spriggs and Alvin C. York.

P. Richard Talley, Dandridge, Tennessee, for the appellees, Peggy J. Lane and husband, Johnny R.
Lane.

                                                     OPINION

                                                           I.

        The basic facts of this case are not in dispute. The 12-acre tract at issue was originally part
of a farm owned by Will York. In 1981, Mr. York had a survey prepared in order to divide the farm
into four unequal tracts, and he hired an attorney to prepare four warranty deeds for the purpose of
conveying a tract to each of Mr. York’s three children – Ethel York Sizemore1 and the defendants
Alvin C. York and Luella Spriggs – and to his granddaughter, Marline York. Included in each deed
is a copy of the survey dividing the farm into four tracts; each tract in the survey is labeled with the
name of the intended grantee. All of the deeds contain an acknowledgment by a notary public dated
January 5, 1982, stating that Mr. York had personally appeared before the notary and had

       1
           Ms. Sizemore is deceased; her estate was not made a party to this action.
acknowledged that he executed the deeds. Only three of the deeds, however, are actually signed by
Mr. York. The deed to Ethel York, while notarized, is not signed.

       Mr. York retained the deeds for four years in a wooden box in his bedroom closet. In
January, 1986, while hospitalized for an illness, Mr. York asked his daughter Luella to retrieve the
deeds and bring them to the hospital. After examining the deeds for approximately thirty minutes,
Mr. York asked Luella to take them to the courthouse and have them recorded. He informed her that
the purpose of the deeds was to convey the family farm to her, Alvin, Ethel, and Marline.

        After the deeds were recorded, they were retained by Luella. At the request of Mr. York,
Luella gave Alvin and Marline their respective deeds. Luella kept Ethel’s deed, since the latter lived
in Ohio. Later, Ethel came to Tennessee, at which time Mr. York took the deed from Luella and
delivered it to Ethel. Mr. York died in 1987.2

        Alvin, Marline, and Luella immediately took possession of their respective properties. While
never occupying her 12-acre tract, Ethel paid the property taxes and allowed a nephew to live on the
land, although it is unclear from the record when and for how long the nephew lived there. Several
family members, including even the defendants, testified that it was “common knowledge” among
the family that Ethel owned the 12 acres in question.

         On July 18, 1992, Ethel conveyed by warranty deed the 12-acre tract to the plaintiffs, Peggy
J. Lane and her husband, Johnny R. Lane. The evidence reflects that the defendants were aware of
this transaction. In 1997, however, Luella learned that the deed from Mr. York to Ethel had not been
signed by Mr. York. She and Alvin retained an attorney, who contacted the plaintiffs and told them
that their ownership of the property was subject to question. Thereafter, the plaintiffs brought this
action, seeking a declaration as to their interest in the subject property. In their amended complaint,
the plaintiffs asked the court to find that the failure of Mr. York to sign the deed was “an inadvertent
clerical error” and requested that the clerical error be cured. They also asserted, as alternative bases
for relief, (1) that they had acquired the property by adverse possession and (2) that the defendants
were barred by estoppel and laches from questioning the validity of the deed to Ethel. The
defendants answered, alleging that the deed purporting to convey the 12-acre tract to Ethel was
inoperative and that, therefore, upon the death of Mr. York, the tract passed to his three children by
intestacy, with each receiving a one-third interest in the 12 acres. In their amended answer, the
defendants also asserted, among other things, that the deed violated the Statute of Frauds.

       Following a bench trial, the court below found in favor of the plaintiffs, citing “several
reasons.” The court found the doctrine of estoppel applicable, and it noted that the plaintiffs had


         2
           The appellants’ b rief states that “[n]o o ne can po sitively say that Mr. York ever delivered the deed to Ethel
York.” This is not an accurate statement of the evidence. Luella Spriggs testified that Mr. York delivered the deed to
Ethel, although she was not sure whether the delivery occurred at the hospital or later when Mr. York was in a nursing
home. Despite her uncertainty as to the site of the delivery, Ms. Spriggs’ testimony clearly establishe s that delivery did
occur.

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satisfied the requirements for adverse possession. Ultimately, however, the trial court concluded as
follows:

               [Q]uite honestly the Court has found that the evidence is clear, cogent
               and convincing. I think that this was absolutely without question a
               mistake pure and simple on the part of Will York; that he absolutely
               meant to sign that deed and it was a mistake that he didn’t, I can’t
               come to any other conclusion. Where he later delivered it and
               ordered it to be recorded. So I think it’s a proper case to order the
               reformation of the deed and that the deed be reformed to reflect, it
               will have the effect, the same effect as if it did bear the signature of
               Will York.

The court rejected the defendants’ argument that the deed violated the Statute of Frauds, finding that
the contract had been partially performed.

       The defendants appeal, arguing that the trial court erred (1) in holding that the deed could be
reformed; (2) in finding that the plaintiffs had acquired the property by adverse possession; (3) in
holding that the doctrine of estoppel applies; and (4) in holding that the Statute of Frauds is not
applicable.

                                                 II.

        Our review in this non-jury case is governed by Tenn. R. App. P. 13(d). That rule provides
that parties on appeal are entitled to a de novo examination of the record of the proceedings below;
however, that record is burdened with a presumption of correctness as to the trial court’s factual
findings that must be honored unless the “preponderance of the evidence is otherwise.” Id.; Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions of law
are also reviewed de novo, but they are not accorded a presumption of correctness. Campbell v.
Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

                                                 III.

        Generally speaking, a deed must be signed by the grantor and delivered to the grantee in order
to pass title to land and to be valid and binding upon the parties and their heirs. See 9 Tenn. Jur.
Deeds § 9 (1993). While the grantor’s signature is generally affixed to the end of the instrument, the
Supreme Court has recognized that the signature may be found within the deed itself, at least in a
case where the deed was handwritten by the grantor, his name being inserted in the deed “so as to
control the entire instrument,” and there is evidence that the signature was intended to be final.
See Saunders v. Hackney, 78 Tenn. (10 Lea) 194, 202 (1882). In the instant case, however, Mr.
York did not sign the deed to his daughter Ethel, and, as the deed was typewritten and prepared by
Mr. York’s attorney, the signature cannot be “found” within the text of the deed itself as in
Saunders. The defendants argue that the deed is invalid for the lack of the grantor’s signature and


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cannot be reformed; it is the contention of the plaintiffs that the omission of Mr. York’s signature
was a result of a mutual mistake and that the deed should be reformed to add his signature.

        Reformation is an equitable doctrine by which courts may correct a mistake in a writing “so
that it fully and accurately reflects the agreement of the parties.” 22 Tenn. Jur. Rescission,
Cancellation and Reformation § 46 (1999). In order to reform a writing on the basis of mistake,
there must have been either a mutual mistake or a unilateral mistake induced by fraud. Williams v.
Botts, 3 S.W.3d 508, 509 (Tenn. Ct. App. 1999), perm. app. denied October 4, 1999. “A ‘mistake’
is an act which would have been done, or an omission which would not have occurred, but from
ignorance, forgetfulness, inadvertence, mental incompetence, surprise, misplaced confidence, or
imposition....” Id. at 509-10. Reformation is appropriate only where the mistake or fraud is shown
by “clear, cogent, convincing evidence.” Dixon v. Manier, 545 S.W.2d 948, 950 (Tenn. Ct. App.
1976).

        The issue of whether a deed may be reformed to supply a mistakenly-omitted signature of
the grantor is an issue that has not, according to our research, been addressed by an appellate court
in Tennessee. It has been recognized in other jurisdictions, however, that “[w]here both parties to
a deed or contract have agreed that the instrument is to be executed, the lack of a party’s signature
can be supplied by a reformation of the document.” 76 C.J.S. Reformation of Instruments § 36
(1994); see also Smith v. Royal Automotive Group, Inc., 675 So. 2d 144, 153-54 (Fla. Dist. Ct.
App. 1996) (“Given that equity regards as done that which ought to be done, there is no compelling
reason why a court may not reform a written instrument to reflect the intentions of the parties,
including a party’s omitted signature.”) (citing 76 C.J.S. Reformation of Instruments § 36).

        We find the Oregon Court of Appeals’ decision in Ames v. Fallert, 657 P.2d 224 (Or. Ct.
App. 1983), to be particularly persuasive in the instant case. In Ames, the parties were business
partners who had purchased commercial property as tenants in common. The parties decided to
merge their interests into one corporation, and a deed was prepared to transfer their individual
interest in the commercial property to the new corporation. The parties and their wives met with the
bank manager handling their transaction. At this meeting, the deed was signed by the defendant, his
wife, and the wife of the plaintiff; however, the plaintiff did not sign the deed. The deed was
notarized and the bank manager certified that the four grantors, including the plaintiff, had executed
the deed and acknowledged to him that they had voluntarily done so. The deed was later
recorded. For the next 12 years, the parties acted consistently with the conveyance of the property
to the corporation; for example, the corporation paid all of the taxes and the value of the property
was included in determining the value of the corporation’s stock.

        When the plaintiff discovered that he had not signed the deed, he brought suit seeking a
declaration that he had a one-half interest in the property. At trial, the plaintiff testified that he did
not intend to convey his interest in the property to the corporation. The trial court, however, found
that there was “overwhelming evidence” of the plaintiff’s intention to sign the deed and convey the
property. The Oregon Court of Appeals agreed, holding that it was “clear” that both parties intended
to convey their interests to the corporation. Id. at 227. In so holding, the Court noted that the


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plaintiff’s wife had signed the deed for the sole purpose of clearing the title of her interest, which
she had only by virtue of her husband’s ownership of the property; from this fact, the Court
concluded that her signature was consistent with an intent on the part of the plaintiff to sign the deed.
Id. Furthermore, the Court noted that the bank officer who notarized the deed obviously thought that
the plaintiff had signed it, and the Court inferred from this that the plaintiff had not revealed any
intention at the meeting not to sign the deed. Id. Finally, the Court relied upon the fact that the
parties had acted for 12 years as if their individual interests in the property had been conveyed to the
corporation. Id. Based upon these facts, the Court concluded that the parties had intended to convey
their interest to the corporation and that the plaintiff’s failure to sign the deed was a result of a
mutual mistake. Id. The Court thus held that the deed could be reformed to add the signature of the
plaintiff. Id.

        As in Ames, there is overwhelming evidence in the instant case to support a finding that Mr.
York intended to sign the deed and convey the 12-acre tract to Ethel. Mr. York instructed his
attorney to prepare four deeds to convey the four tracts, which together made up his farm, to his three
children and a granddaughter. The survey incorporated into the deeds indicates the four tracts, which
are labeled with the names of the intended grantees, including Ethel. While Mr. York signed only
three of the deeds, all four deeds were signed, on the same day, by a notary public. The notarization
on each deed states that Mr. York appeared before the notary public and acknowledged that he
executed the deed. Mr. York retained all four deeds in a wooden box, which, according to his
children, was where he kept his important papers. Four years later, he told his daughter Luella that
he was conveying the tracts to her, Alvin, Ethel, and Marline, and he asked her to record all four
deeds. Clearly, Mr. York’s conduct is consistent with an intention to convey these tracts to his
children and granddaughter. We also find it significant that following the conveyance, Mr. York’s
children acted consistently with their father’s division of the farm among them, and that no one
objected to Ethel’s conveyance of the 12-acre tract to the plaintiffs. Under the particular facts of this
case, we find the evidence clear, cogent, and convincing that Mr. York intended to convey the
subject property to Ethel and that he carried that intention into effect by having the deed recorded
and delivered to his daughter. His failure to sign the deed was the result of a mutual mistake. We
therefore hold that the deed may be reformed to add the signature of Mr. York. The trial court is
affirmed as to this issue.

                                                  IV.

        The defendants argue that the unsigned deed cannot be given effect because it falls within
the Statute of Frauds, T.C.A. § 29-2-101(a) (2000), which provides, in pertinent part, as follows:

                No action shall be brought...[u]pon any contract for the sale of land,
                tenements, or hereditament...unless the promise or agreement, upon
                which action shall be brought, or some memorandum or note thereof,
                shall be in writing, and signed by the party to be charged therewith,
                or some other person lawfully authorized by such party.



                                                  -5-
We disagree. As we have held that the deed should be reformed to add the missing signature of the
grantor, we conclude that the deed does not run afoul of the Statute of Frauds.

        Having held that the trial court correctly reformed the deed to supply the missing signature
of the grantor, we need not reach the issues of estoppel and adverse possession raised by the parties.

                                                 V.

       The judgment of the trial court is affirmed. This case is remanded for collection of costs
assessed below, pursuant to applicable law. Costs on appeal are taxed to the appellants, Luella
Spriggs and Alvin C. York.


                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




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