## Facts

- Thomas R. Fox and Judith Ann Barker lived together for years in a long-term, unmarried relationship.
- During the relationship, Barker worried about her security if Fox died.
- Fox purchased a 99-acre farm and recorded a deed listing Fox and Barker as grantees, holding title as tenants in common.
- The relationship ended years later, but the deed remained unchanged.
- More than a decade after the breakup, Barker filed suit to partition the farm based on her recorded ownership interest.
- Fox counterclaimed and raised defenses, asserting that Barker had given up her interest under a later settlement agreement and that bringing the partition action breached that agreement.
- Fox also sought reformation of the deed, arguing that he never intended to give Barker a present ownership interest and misunderstood the legal effect of placing her on the deed.
- Fox pointed to his continued possession of the property and improvements made after the claimed settlement as proof of the agreement and as a basis to avoid the Statute of Frauds.
- The trial court granted Barker partial summary judgment, ruling that the recorded deed made the parties tenants in common and that Barker was entitled to an equal share in the partition case, with any equitable financial adjustments to be determined later.
- Fox pursued an interlocutory appeal from the partial summary judgment order.

## Issues

1. Whether the trial court correctly entered partial summary judgment that the deed created a present tenancy in common and that Fox was not entitled to reformation based on his asserted misunderstanding of the deed’s legal effect.
2. Whether Fox produced evidence of an enforceable settlement agreement by which Barker surrendered her interest in the farm sufficient to defeat Barker’s partition claim, given the Statute of Frauds.
3. Whether Fox’s continued possession and post-settlement improvements established part performance (or similar equitable grounds) sufficient to enforce the claimed settlement or bar partition.

## Decision

- The Court of Appeals of Indiana affirmed the trial court’s grant of partial summary judgment for Barker.
- The recorded deed listing Fox and Barker as tenants in common conveyed a present, undivided ownership interest to Barker; she retained that interest and could seek partition.
- Reformation was unavailable on Fox’s showing because his claim rested on a mistake about the legal consequences of a deed he knowingly executed and recorded, not on a correctable drafting error, fraud, or another recognized basis to rewrite the instrument.
- Fox failed to present competent evidence of a settlement that transferred or extinguished Barker’s real-property interest because he did not produce a writing, signed by Barker, containing the essential terms required for a land-interest agreement.
- Fox’s possession and improvements did not constitute part performance that could take the alleged settlement outside the Statute of Frauds because those acts were not explainable only by the claimed agreement; they were consistent with Fox’s ongoing use of the property even if no settlement existed.
- With Fox’s reformation and settlement theories failing as a matter of law on the summary-judgment record, Barker remained entitled to proceed in partition as an equal co-owner, subject to later adjustment in the partition proceedings.

## Legal Principles

- A deed naming two grantees as tenants in common generally conveys present, vested, undivided ownership interests to each grantee.
- Reformation of a deed is an extraordinary remedy and is not granted merely because a party misunderstood the legal effect of an instrument that accurately reflects what was executed and recorded.
- Agreements that convey, release, or surrender an interest in real property generally must be in a writing signed by the party against whom enforcement is sought, and the writing must contain the essential terms (Statute of Frauds).
- Part performance may permit enforcement of an otherwise unwritten land-interest agreement only when the relied-upon acts are clearly referable to the alleged agreement and not readily consistent with the parties’ conduct absent that agreement.
- On summary judgment, once the movant shows the absence of a genuine factual dispute, the nonmovant must present admissible evidence establishing a triable issue; unsupported allegations of an unenforceable land settlement will not defeat recorded title.

## Conclusion

The appellate court held that the deed controlled: Fox and Barker remained tenants in common, and Barker could pursue partition for an equal share. Fox’s attempt to eliminate Barker’s recorded interest failed because reformation could not be based on his misunderstanding of the deed’s legal effect, and his settlement theory failed for lack of a signed writing with essential terms and for lack of part performance uniquely tied to the alleged agreement.


Fox v. Barker, 170 N.E.3d 662 (2021)