Folsom v. Howell
| Decision Date | 30 June 1894 |
| Citation | 21 S.E. 136,94 Ga. 112 |
| Parties | FOLSOM v. HOWELL et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A demurrer to a petition as amended opens the merits of the whole pleading to a fresh adjudication, and a conditional order of dismissal made on the hearing of a previous demurrer to the original petition concludes nothing. Thus, where a petition was heard on a demurrer thereto, and the presiding judge passed an order, not dismissing the petition, but declaring that it would be dismissed unless amended within a given time so as to make it good in law, this judgment was not final upon the merits, but the whole petition was open for amendment within the time limited, and another demurrer afterwards filed to the petition as amended should have been overruled if the petition as a whole set forth a cause of action, whether the matter contained in the amendment aided it or not.
2. If administrators, in selling land as the property of their intestate, represented the boundaries thereof as extending along certain lines from point to point, giving the length of each line, and thus misrepresented the extent and contents of the tract, whereby they were enabled to sell, and did sell at a fixed price per acre, a tract of land containing 38 6/10 acres as a tract containing 50 acres, receiving payment accordingly, the purchaser was defrauded in so far as the money paid represented the price of the deficiency, whether the administrators knew their representations were false or not, provided the representations were accepted and treated by the purchaser as true, and he acted and relied upon them in making his purchase, paying his money, and receiving the conveyance. If the administrators did not know where the true boundaries of the tract were they should not have taken upon themselves to point out the same, or make any definite and positive representation concerning them which the state of their knowledge did not enable them to make with verity and correctness. While the doctrine of caveat emptor would charge the purchaser with looking out for the title which the decedent had to the tract offered for sale as his, it would not charge him with looking out for the boundaries of that tract when the administrators undertook to locate and point them out, thus professing to know them sufficiently to enable them to furnish this information to purchasers, instead of leaving the latter to their own resources in acquiring the information.
3. The plaintiff is entitled to no land not embraced in his purchase, although some of the tract actually owned by the decedent may have been excluded therefrom.
4. The petition seems to be open to the objection of misjoinder of parties defendant, and direction is given that it be dismissed as to Mims and Alexander.
Error from superior court, Fulton county; J. H. Lumpkin, Judge.
Action by L. B. Folsom against Albert Howell and another, as administrators of Clark Howell, and others. The petition was dismissed as to the administrators, and plaintiff brings error. Reversed.
Where the purchaser of land at an administrator's sale relies on the representations of the administrator as to the boundaries and extent of the land, and such representations are false to the extent of transferring a 38-acre tract as a 50-acre tract, the purchaser may recover the price paid to the extent of the deficiency, though the administrator believed that his representations were true.
The following is the official report:
Folsom filed his petition against Howell and Woodward, as administrators of Clark Howell, and Alexander and Mims, to reform a deed, and for other purposes. A demurrer was interposed by the administrators, and on August 16, 1893, the presiding judge, upon hearing the demurrer, ordered that the petition be dismissed as to the administrators, unless the plaintiff should by appropriate amendments, filed within 30 days, make the same good in law. No exception was taken to this ruling. Within the 30 days plaintiff filed an amendment. The administrators demurred to the petition as amended, and this demurrer was sustained, and the petition as amended dismissed as to the administrators. Folsom excepted.
The original petition alleged: On the first Tuesday in March 1890, petitioner purchased 50 acres of land, in the southeast corner of land lot 153 of the Seventeenth district of Fulton county, from Howell and Woodward, as administrators of Clark Howell, at public administrators' sale, within the legal hours of sale, at auction to the highest bidder, before the courthouse door of said county, in two adjoining tracts of 25 acres each, according to the plat exhibited by them at the sale, paying $50 per acre for one tract and $42 per acre for the other tract. He paid them the full amount of the purchase money, and they executed to him a deed to the land, a copy of which is annexed. Several months afterwards he had the land surveyed, and discovered for the first time that instead of 50 acres, as described in the deed and plat, there were only 38 6/10 acres there; that if the land extended north from the south line of the land lot 1,710 feet, as described in the deed, it would lap over on the lands of Holbrook, Hughes, and Osborne 520 feet to get the 50 acres and make the shortage which the estate of Clark Howell did not own, and which the administrators had no right to sell or convey, or receive purchase money for. At the same time it was discovered that said administrators' deed should have conveyed to petitioner, instead of 1,275 feet west from the southeast corner of the land lot, 1,418 feet west from the southeast corner, which is the true distance from the southeast corner west to the center of the south line of said land lot, and which was owned by said estate, and included in the order of sale granted by the court of ordinary for the sale of said land by the administrators, and in the advertisement of the sale under such order at which petitioner purchased, so that the deed should really have been for a tract commencing at the southeast corner of the land lot and running thence west along the land-lot line, to the center of the south line of the land lot, 1,418 feet, and extending north the same width 1,186 feet, to the land of Holbrook, Hughes, and Osborne containing 38 6/10 acres. He duly informed the administrators of said shortage, and upon investigation they admitted there was a shortage, and promised to reform the deed and make it conform to the true metes and bounds and dimensions of the tract as above shown, but...
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