Cantrell v. Kaylor

• Decision Date: 12 November 1947
• Docket Number: 15990.
• Citation: 45 S.E.2d 646,203 Ga. 157
• Parties: CANTRELL v. KAYLOR et al.
• Court: Georgia Supreme Court

45 S.E.2d 646

203 Ga. 157

CANTRELL v. KAYLOR et al.

No. 15990.

Supreme Court of Georgia

November 12, 1947

Rehearing Denied Dec. 2, 1947.

Syllabus by the Court.

1. The motion to dismiss the writ of error is denied.

2. An objection to a ruling on a motion to strike an amendment to the defendant's answer is not a proper ground of a motion for new trial.

3-"7. No error is shown in the amended grounds of the motion for new trial dealt with in divisions 3 through 7.

8. The documentary evidence excluded, and of which complaint is made as shown in division 8, should have been admitted.

9. The evidence on the trial of this case was not clear unequivocal, and decisive as to any mutual mistake of the parties, and will not support a verdict and decree for reformation of a deed.

The controversy between the parties in this case has previously been before this court. Cantrell v. Kaylor, 201 Ga 406, 39 S.E.2d 657. In the former case this court held that the plaintiff in error in this case, Cantrell was entitled to the free and unobstructed use of a private alley adjacent to his property, which was mentioned in his deed with the statement that it was to remain forever open.

Thereafter the defendants, Julian and Fletcher Kaylor, filed an amendment to their answer, alleging that: Julian Kaylor and J. L. Garrett are the duly qualified and acting administrators de bonis non with will annexed of the estate of J. L. Kaylor, deceased. The administrator caused the property of the estate to be divided into lots, as shown by a recorded plat, and in order to provide ingress and egress to lot 8, a private driveway, for the sole benefit and use of the purchaser of lot 8, was set apart between lots 5 and 6. On the day immediately preceding the sale of the Kaylor estate property, J. W. Griffin came to Julian Kaylor to inquire relative to the use of the driveway by the purchasers of lots 5 and 6, and Julian Kaylor informed him that the private driveway was for the sole and exclusive use of the purchaser of lot 8, and that the purchaser of lot 6 would not have any use of the driveway. On the following day, after full information, notice, and knowledge, J. W. Griffin bid off lot 6, and subsequently caused the deed to such tract to be made to the plaintiff, W. C. Cantrell. At the time of the sale it was announced and made known to other prospective purchasers that the purchasers of lots 5 and 6 would have no rights in the private driveway. There is a described triangular tract of land which was not sold, and no right, title, or interest in it was ever acquired by Cantrell; nor was there any intention to grant any right of egress and ingress over this tract. In drawing the administrators' deed from them to Cantrell there was a mutual mistake in the language used; it was never the intention of any of the parties to the deed that Cantrell would acquire any permission to use the private driveway leading to lot 8, or the described triangular tract; it was mutually intended that the deed should express the fact that Cantrell was excluded from any right to use the private driveway and the triangular tract. The young lady who drew the deed did not express the intention of both parties to make such specific exclusion. There was a mutual mistake by the parties as to the legal construction of the language used in the instrument to express the true agreement of both parties, and there was a defective execution of the intent of the parties. The respondents, Julian and Fletcher Kaylor, purchased lot 8, and they own the private driveway.

The prayers of the amendment were: That process issue directed to J. L. Garrett and Julian Kaylor, as administrators, requiring them to show cause why they should not be made parties to the suit; that the deed between the administrators and Cantrell be reformed by adding stated language, which would exclude Cantrell from using the private driveway and the triangular tract described; that Cantrell be enjoined and restrained from interfering with the use of the driveway by the respondents; and for other relief.

The court ordered that the amendment be filed. The administrators were directed to show cause on November 2, 1946, why they should not be made parties to the suit. Cantrell was temporarily enjoined as prayed. On November 2, 1946, the court passed an order reciting that 'no cause being shown and no objections being filed by said administrators,' it was ordered that they be made parties to the cause in order to plead properly as required by statute. The record does not disclose that any pleadings were filed by the administrators.

On the trial of the case the evidence was substantially as follows: W. C. Cantrell, the plaintiff, testified: He was not present when the deed was executed. Mr. J. L. Garrett brought it to him at his office on June 2, 1942. He was present at the sale. There was no public statement made at the sale reserving the private driveway. He did not bid on the property at the public sale. After the sale he went to see the property he bought. Mr. Julian Kaylor pointed out the lines to him, and Kaylor did not say that he did not have the right to the driveway and the triangular lot. He let Julian Kaylor use the property free of rent for four years, and while using the lot Kaylor used the alley. In answer to the question: 'Thirty minutes after this sale, before any difference came up, Mr. Jeff Kaylor showed you the line down there on this property and pointed out the property you bought, and told you in that conversation that you couldn't get any rights to the private driveway?' the witness replied: 'He might have told me something when I was talking to him about the alley. It wasn't 30 minutes after the sale at the home place.'

T. M. Hamrick, sworn for the defendants, testified: He was the auctioneer who sold the property of the Kaylor estate. When he started to sell the property he made the statement that the administrators told him to make, that the alley was to stay open for the sole benefit of the purchaser of lot 8. The affidavit which he formerly made, stating that no announcement was made at the sale in regard to the private way, was untrue.

Jeff Kaylor, sworn for the defendants, testified that: He attended the sale of the Kaylor estate property. The auctioneer announced at the sale that the private driveway was specially for lot 8. After the sale Mr. Cantrell asked the witness whether he could use the private alley. The witness replied, 'Yes, you can use it, it will be all right.' Cantrell said, 'I want to use it if I can, until I can go in through a private way across the sidewalk.' The witness told him: 'You know that is a private right of way for lot eight exclusively.' This conversation was thirty minutes after the sale.

Julian Kaylor, sworn for the defendants, testified that: He was one of the administrators of his father's estate. On the day of the sale when they sold lot 8, the auctioneer made the statement that the private driveway was left for the use of the back lot 8. The witness and Fletcher Kaylor bought lot 8, and their deed is introduced in evidence. When he had the deed executed it was the intention of the administrators to make tract 8 have the private driveway for its exclusive use. He gave the direction when the deed was executed that the deed should stipulate that the private way was to be exclusively for his own use. It was the intention of the administrators that the purchasers of lots 5 and 6 could not close up the driveway, that it was to belong exclusively to lot 8, and that lots 5 and 6 were not to have any rights of ingress or egress over it. He thinks the deed to Mr. Cantrell was dictated by Mr. Buford Boykin (one of the counsel for the defendants). Mr. Cantrell was not present when the deed was written, and the witness was not there.

Mrs. Ralph Wester, sworn for the defendants, testified that: She typed the deeds from the administrators to Cantrell and from the administrators to the Kaylors. At the time the deeds were drawn the information conveyed to her was that the driveway was intended for the use of lot 8 only. She undertook to express that in the deed. She was drafting the deeds for the administrators. None of the parties were there when the deeds were written. Mr. Boykin gave her the information as to the grantors and the grantees and she got the description from the newspaper advertisement and plat. The administrators came and signed the deeds when they were prepared.

Fletcher Kaylor, sworn for the defendants, testified that an announcement was made at the sale that the driveway was to be for the exclusive use of the purchaser of lot 8.

J. L. Garrett, sworn for the defendants, testified that: He was one of the administrators of the Kaylor estate. After the property was sold he executed a deed. It was their intention in executing the deed to Cantrell to reserve the driveway. It was not their intention to convey any title in the driveway to the purchasers of lots 5 and 6. That was expressly stated to Mrs. Wester when the deed was made. The witness stated that: 'The intention was to keep this alley open for this lot back here [indicating]. So that whoever bought number eight had a way to go in and out. It was to be kept open for the benefit of the man number eight belonged to * * * Whether I had no intention to prevent anybody from using that wanted to use it, wasn't nothing said about that. It was a driveway for this lot back here. Whether there was no intention of preventing anybody from using it that wanted to, nothing said about that at that particular time * * * When I made the deed I undertook to convey to the purchaser of lot number eight this driveway.'

J. W Griffin, sworn for the plaintiff, testified that: He is familiar with the tract of...