Christian v. Ross

• Decision Date: 18 May 1916
• Docket Number: (No. 438.)
• Citation: 145 Ga. 284,88 S.E. 986
• Parties: CHRISTIAN. v. ROSS.
• Court: Georgia Supreme Court

145 Ga. 284

88 S.E. 986

CHRISTIAN.

v.ROSS.

(No. 438.)

Supreme Court of Georgia.

May 18, 1916.

(Syllabus by the Court.)

Evans, P. J., and Lumpkin, J., dissenting.

Error from Superior Court, Sumter County; Z. A. Littlejohn, Judge.

Action by Kate Ross against R. G. Christian. On the death of plaintiff, J. R. Ross, administrator, was substituted as plaintiff. Judgment for plaintiff, and defendant brings error. Reversed.

Miss Kate Ross brought her petition against R. G. Christian, and prayed for a decree canceling a certain deed in which she was the grantor and the defendant the grantee, and for other equitable relief. By this deed she conveyed for a given consideration the land therein described. The consideration as expressed in the deed was the assumption by the grantee of a loan, which was an incumbrance on the laud, and the payment of a stipulated sum monthly by the grantee to the grantor for and during her life. A separate and distinct written agreement was executed by the grantor and grantee simultaneously with the execution of the deed, in which was embodied the provision | for the payment of the sum due monthly.

The grantor reserved a life estate in the land, but this for a stated consideration she leased to the grantee. The grantee had failed to perform his undertaking to pay off the incumbrance and to pay the sums due monthly. Upon this statement of facts a cancellation of the deed was asked. Pending the suit the petitioner died, and her administrator was made a party, and at a subsequent term of the court he offered an amendment, in which it was set up that the defendant was insolvent when the original petition was filed, that he had received more from Kate Ross than he had contributed to her support, that at the time of the negotiations for the conveyance of the land Kate Ross was of a weak mind, easily to be influenced and directed and led by any one in whom she had confidence, and she reposed confidence in the grantee, and that he had taken advantage of her mental weakness, and by promises of assistance and care, as well as expressions of friendship, had procured the execution or the deed. The defendant by appropriate demurrers attacked the petition as originally filed and the allowance of the amendment. The demurrers were overruled, and the defendant excepted.

Wallis & Fort and W. T. Lane, all of Americus, for plaintiff in error.

R. L. Maynard, of Americus, for defendant in error.

BECK, J. (after stating the facts as above). The issues made by the pleadings in this case are covered by the decision and rulings in the case of Brand v. Power, 110 Ga. 522, 36 S. E. 53. The syllabi in that case, which constitute the headnotes in this case, show the substance of the ruling; and the decision which elaborates that ruling renders further discussion of the questions here unnecessary.

Judgment reversed. All the Justices concur, except

EVANS, P. J., and LUMPKIN, J. (dissenting). In Ellison v. Georgia R. Co., 87 Ga. 691, 13 S. E. 809, the subject of amendment received a full consideration. It was declared that:

"Scarcely any right of procedure is more important to suitors or more frequently called into exercise in actual practice than that of amending their pleadings. Amendment is a resource against waste."

It was held that:

"When the amendment needed is one of substance itself, 'enough to amend by' does not mean the same as 'enough to be good in substance without amendment.' On the contrary, failing to be good in substance is generally the reason why amendment of substance is needed. 'Enough to amend by' is to be determined by what is enough relatively to the particular amendment needed and offered."

The necessity for this discussion arose in large part from an erroneous rule in Martin v. Gainesville, etc., Railroad, 78 Ga. 307, and other cases which followed it. Objections to material amendments to petitions were re peatedly (indeed almost always) made on the grounds that the amendment added a new cause of action to the original petition and that there was nothing in the petition to amend by. In some cases decisions were rendered which did not adhere closely to the ruling in the Ellison Case. The decision in that case was substantially repeated in City of Columbus v. Anglin, 120 Ga. 785, 48 S. E. 318. In Eagle & Phenix Mills v. Muscogee Mfg. Co., 129 Ga. 712, 59 S. E. 804, the...