Error v. Arrington

• Decision Date: 28 February 1853
• Docket Number: No. 12.,12.
• Citation: 13 Ga. 88
• Parties: W. E. A. Wall et al. plaintiffs in error. vs. Thomas N. Arrington, defendant.
• Court: Georgia Supreme Court

13 Ga. 88

W. E. A. Wall et al. plaintiffs in error. vs. Thomas N. Arrington, defendant.

No. 12.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1853.

In Equity, in Twiggs Superior Court. Tried before Judge Powers. September Term, 1852.

In the year 1835, William Johnson sold lot of land number 112, in the 28th district of Twiggs County, to Wm. E. A. Wall, who afterwards, to wit, in 1840, executed a mortgage deed to the north-east half of said lot, to Ira Peck, to secure the payment of $300.00, and in drafting the mortgage, the said lot was described as being number 109, instead of 112.

The mortgage was afterwards foreclosed and the land sold, when Peck became the purchaser, and the Sheriff executed him a deed, in which the same mistake as to the number of the lot was made. In 1845, Peck sold and conveyed the land to Na-than Land, and in the deed, the same number, 109, was inserted. In 1847, Land sold and conveyed the land to complainant, Thomas Arrington, and in the deed the lot was properly described as being number 112.

Afterwards Peyton Reynolds caused the land to be levied on by fi. fas. younger than the mortgage deed, which had been transferred to him by one Amos Ofmy, and against T. C. Reynolds, Wm. E. A. Wall and Peyton Reynolds, security. Complainant, Arrington, filed his claim to the land, and pending the claim filed his bill in Equity, alleging the above stated facts, and praying the Court to reform and correct the several deeds and the mortgage in which the mistake relative to the number of the lot of land had been made.

The answers of the several defendants, substantially admitted the facts as charged in the bill, and on the trial were read in evidence. The complainant also proved that Wall, Peck, Land, and complainant, had been in successive possession of said lot, 112, for many years, and that Wall never owned lot number 109.

Counsel for defendant requested the Court to charge the Jury—

1st. That if there had been any negligence, or if the complainant had not shown due diligence, he was not entitled to have the alleged mistake corrected.

2d. That inasmuch as the complainant had a warrantee deed from Nathan Land, he was not injured by the alleged mistake, and was not entitled to have it corrected.

3d. That inasmuch as Peyton and Charles Reynolds, were judgment creditors of Wall and had no notice or knowledge of the alleged mistake, the mistake could not be corrected as against them.

4th. That inasmuch as the complainant showed no contract in writing for the conveyance or mortgaging of lot 112, he was not entitled to the relief prayed for.

5th. That a Court of Equity could not and would not reform a deed, by inserting therein a separate and distinct lot of land from the one embraced in the deed.

The Court refused to give the charge as requested, and counsel for defendant excepted, and has assigned error.

C. B. Cole, for plaintiff in error.

Poe & Nisbet, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

The questions in this case are all made by the refusal of the Court to charge as requested by the defendant's counsel. I shall take up the points in their natural order, and not as they stand in the bill of exceptions.

The 4th and 5th grounds are the same in substance, and the proposition which they assert is, that parol proof is inadmissible to correct mistakes in bonds, deeds of mortgage and other contracts, respecting lands.

Chancellor Kent, in 1817, thirty-six years ago, declared that it had been the steady language of the English Chancery for the last seventy years preceding that period, and of all the compilers of the doctrines of that Court, that a party may be admitted to show by verbal evidence a mistake as well as fraud in the execution of a deed or other writing. Gillespie and Wife vs. Moon, 2 Johns. Ch. Rep. 585. And accordingly in that case, he decreed that the defendant release to the plaintiffs the title to 50 acres of land, which was included in the conveyance made to him by an error in the description of the land. And a stronger case than this could not arise. For the mistake was most positively denied in the answer to the bill brought to rectify it; and the oral testimony was* received in opposition to the plain language of the deed as well as to the defendant's answer.

After citing this case with emphatic approval, in one of the first and most elaborate opinions delivered by this Court, to wit, Rogers vs. Atkinson et al. (1 Kelly, 12,) and ruling explicitly that as it respects the right of a Court of Chancery to rectify mistakes and reform written contracts, there was nodifference between that class of cases required by the Statute of Frauds to be in writing and those not within the Statute, we flattered ourselves that this principle at least, would have been considered as settled. But we were mistaken.

The broad question was again made in Trout vs. Goodman, (7 Geo. R. 383.) And notwithstanding we believed that the parol evidence, which consisted of the declarations of the vendor made subsequent to the sale, ought not, under the circumstances, to have prevailed against the answer of the defendant, denying the alleged mistake, still as we were with the defendant in error as to the competency of the proof, and the matter of its sufficiency was a question alone for the Jury, its weight in this, as in all other cases, being their business, and not ours, we refused to disturb the verdict. By it, the vendee obtained a decree for sixty acres of land more than was embraced in the boundary lines, as set forth in his bond for titles.

The subsequent renewal of this subject, satisfies us that we may despair of ever looking upon it as res ad judicata, in our day. Perhaps our successors, abounding more both in reason and authority than ourselves, as well as it respects this as other questions so repeatedly and perseveringly brought up for re-hearing and re-adjudication, may be more fortunate, because more successful in giving rest to the land.

It only remains for us to pronounce, which we accordingly do, that in our humble opinion the parol proof in this case was competent and admissible; and we will add that it establishes most clearly and conclusively the fact of the mistake, as charged in the bill.

Does the fact that the complainant had a warrantee deed from Nathan Land, his vendor, deprive him of the relief which he seeks?

Would it be equitable to turn Arrington over upon Land? On the contrary, is not Land, who is before the Court, entitled to have this correction and reformation made for his benefit? He was an innocent purchaser from Peck, as Peck was under the mortgage from Wall, without notice of the error in the number of the lot. What justice would there be in relieving Arrington at his expense? None. On the contrary, all who hold under the mortgage sale, have equal claims upon a Court of Chancery to have this mistake corrected, for the benefit of each and all of them.

But it is said that inasmuch as Peyton and Charles Reynolds, were judgment creditors of Wall, and had no notice or knowledge of the alleged mistake, that it cannot be corrected as against them.

The authority of Judge Story is in opposition to this position. He says that in all cases of mistake in written instruments, Courts of Equity will interfere as between the original parties, or those claiming under them in privity, such as personal representatives, heirs, devisees, legatees, voluntary grantees, or judgment creditors, or purchasers from them with notice of the facts. 1 Stor. Eq. §165. See also, Burgh vs. Francis, 1 Eq. Cas. Abr. 320. Taylor vs. Wheeler, 2 Vernon, 564. Finch vs. The Earl of Winchelsea, 1 P. Williams, 277. In the matter of Home, 1 Paige, 125. White and others, vs. Wilson and another, 6 Black. 448.

This last case was very similar in all respects, to the present. Hunt, one of the defendants, mortgaged certain lands to the complainants. A tract intended to be included, was omitted by mistake. Subsequent to the mortgage, certain creditors of Hunt obtained judgment against him and threatened to levy on the land which by mistake had been left out of the mortgage. The Supreme Court of Indiana held that a Court of Chancery had authority to correct the mistake in the mortgage, and free the omitted tract from the lien of the judgment.

The case of the United States vs. Monroe et al. (5 Mason's Rep. 572,) is relied on as authority in conflict with the opinion in Judge Story's Commentaries that mistakes may be corrected as against judgment creditors. Let us examine it and see.

Samuel Langton had assigned his effects to Washington Monroe and Elijah Loring. Subsequent to the assignment, Monroe became insolvent, and made an assignment of all hisproperty, including all that passed for his benefit, under the assignment from Langton. A bill was brought by the United States against Monroe and Loring, to enforce their right of priority of payment of debts out of the effects of Langton, and for this purpose, to show that it was the intention of all the parties to the assignment made by Langton, that the clause providing for the priority of payment of custom-house bonds due to the United States, should apply to all the bonds of Langton then owing to the custom-house, and not as the terms of the assignment plainly purported, to those bonds only upon which Monroe was surety.

Judge Story decided, and very properly, and in entire consistency with the doctrine quoted from his Equity Jurisprudence, that the assignees and creditors of Monroe were essentially interested in the litigation, and should have been made parties to the bill; and suggested as a reason for this opinion, that they might have released their debts upon the faith of the validity of the assignment from Langton in its original shape; and that unless they had some notice of the alleged mistake, it would be...