Halliburton v. Collier

• Decision Date: 18 June 1947
• Docket Number: No. 31467.,31467.
• Citation: 43 S.E.2d 339
• Parties: HALLIBURTON. v. COLLIER et al.
• Court: Georgia Court of Appeals

43 S.E.2d 339

HALLIBURTON.

v.COLLIER et al.

No. 31467.

Court of Appeals of Georgia,

Division No. 2.

June 18, 1947.

Syllabus by the Court.

1. When necessary and proper allegation have been omitted from the bill of exceptions the same may be amended as a matter of right if such imperfections and omissions can be supplied from the transcript of the record.

2. The rule that courses and distances yield to fixed monuments is well established in this State. But where the vendor in the course of the sale is guilty of actual fraud in representing the boundary line or lines as well as the course and distance of any of such boundary line or lines of such city real estate lot, if the buyer was fraudulently induced to buy a lot of less width or depth than vendor represented it to be, the buyer would be entitled to a reduction of the purchase money in proportion to the deficiency such line or lines bore to the line or lines bargained for.

3. When the petition is ambiguous and capable of two constructions, in the absence of demurrer the construction will be adopted which supports the verdict.

4. Verdicts will not be set aside as excessive on motion for new trial when there is evidence to support the same unless so excessive as to justify the inference of gross mistake or undue bias, the same having the approval of the trial judge.

5. Parties to litigation have the right to support by proof allegations contained in their pleadings as laid, when no demurrer or motion to dismiss is interposed at the proper time, the sufficiency of the petition cannot be raised for the first time on the motion for new trial.

6. The remaining assignments of error are without merit and the judgment of the trial court overruling the motion for new trial was not error.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Action by Mrs. Lois H. Collier and her husband C. Frank Collier against Mrs. Josephine Gledhill Halliburton for rescission of sale of realty, for cancellation of purchase price notes given for realty, to recover for cost of garage and brick wall constructed by plaintiffs, for amount paid on purchase price, and to enjoin defendants from transferring notes and from exercising power of sale on security deeds, wherein the defendants filed a cross-bill. To review an adverse judgment, defendants bring error to the Supreme Court. The Supreme Court, 39 S.E.2d 698, transferred the case to the Court of Appeals.

Judgment affirmed.

This action was brought by Mrs. Lois H. Collier and husband, C. Frank Collier against Mrs. Josephine Gledhill Halliburton to the August Term, 1945, of the Superior Court, Bibb County, Georgia, on two counts. The parties will be referred to as plaintiffs and defendants hereinafter, unless otherwise designated.

The first count of the petition alleges in substance: That on August 19, 1944, defendant conveyed to petitioners by warranty deed, the following described property, "All that tract or parcel of land lying and being in the East Macon District of Bibb County, Georgia, now within the corporation limits of the City of Macon, and being a part of lot number one (1) in block one (1) according to a subdivision of lots 'U' and 'V of the Dubois survey of the Wool-folk property, a plat of which subdivision is of record in the Clerk's office of Bibb Superior Court in plat book four, folio 53; said lot being more particularly described as follows: beginning at the N.E. corner of the intersection of Main and Norris Streets and running thence in an easterly direction along the north side of Main Street a distance of 100 feet, more or less, to a brick wall; thence along said brick wall in a northerly direction a distance of 155 feet more or less, to a 10 foot alley; thence along the line of said 10 foot alley in a westerly direction a distance of 24 feet, more or less, to Norris Street, thence along Norris Street in a southerly direction a distance of 163.2 feet, more or less, to Main Street and the point of beginning; being a part of the property conveyed to the grantor hereinby Edward Wlroy McDonnell, Elsie Mae Looney and Mrs. E. E. Moore by deed recorded in book 488, folio 731, Clerk's Office Bibb Superior Court, and having situate thereon a frame dwelling house known as No. 900 Main Street, Macon, Bibb County, Ga.;" that at the time the deed was made the defendant knew that she did not have title to all of said property, part of which belonged to the City of Macon and comprised a part of Norris Street; and that her representations of ownership were fraudulently made; that defendant at the time owned only 73 feet frontage on Main Street running 163.2 feet on the west side and 148 feet on the east side to a point; that although the deed described the northern boundary of said tract as fronting 24 feet, more or less, on a 10 foot alley, actually said tract, by reason of having 27 feet less frontage on the south or Main Street side thereof than that (more or less) represented in said deed, became triangular in form at the northern end before reaching said alley; that plaintiffs, believing they had 27 feet more on Main Street, than they actually bad, and thinking that this 27 feet more comprised a part of the yard, built a house on said property and later found they had erected said house on or near the line of said property. Plaintiffs contend that they built a garage and brick retaining wall in Norris Street, costing the sum of $1,200, due to the defendant's alleged misrepresentations and that the same were constructed on the property plaintiffs purchased from the defendant. They also allege that they paid the sum of $145 on the purchase price and executed notes aggregating $3,700 and a deed to secure the payment thereof.

Plaintiffs pray for the rescission of the sale and cancellation of notes, for judgment in the sum of $1,345; that the defendant be enjoined from transferring said notes and exercising power of sale on the security deed; that equity intervene to do complete justice and avoid a multiplicity of suits, and for general relief and process.

Count 2 alleges in substance the same facts as herein set out in count 1, and in additition alleges, that defendant sold said property to plaintiffs for $3,750 and because of the alleged shortage plaintiffs received only $2,000 worth of property. Plaintiffs allege: That the purchase price should be abated because of deficiency and pray court that any and all notes in excess of $2,000 be cancelled and decreed void; and that plaintiffs have judgment against the defendant in the sum of $1,750; that said notes may be transferred to innocent purchasers for value; that they lost a part of the land addition alleges, that defendant sold said value; that they lost a part of the land which defendant undertook to convey to them, because of the defect in her title, and pray a reduction of price according to the relative value of the land so lost. Petitioners pray, in count 2: That the purchase price be reduced and abated to the extent of $1,700 (italics ours); that plaintiffs have judgment against defendant in the sum of $1,700 (italics ours), which is value of the land lost to them because of the defect in the title of the defendant; that defendant be enjoined from transferring said notes, given for purchase price; and that she be enjoined from exercising the power of sale on the security deed; that equity intervene so that complete justice may be done between the parties and a multiplicity of suits be avoided, and for general relief and process.

By answer and cross-bill the defendant denies any liability and contends: That the distances recited in the deed were "more or less" the distances being controlled by the fixed monuments referred to in said deed; that plaintiffs lived on the property for some time prior to the purchase and knew the boundaries thereof; that only $120 has been paid on the purchase price; that the building of the wall and garage was done by plaintiffs prior to the execution of the deed and without the knowledge, authority, or consent of the defendant; that the purchase money note became in default September 1, 1944, and that defendant has exercised her option to declare the amount of the principal due and payable at once; that plaintiffs are indebted to her in the sum of $3,694.75 balance, due as of November 2, 1944, with interest thereon at 7% per annum. Defendant's answer and cross-bill to count 2 is substantially the same as that to the first count. In ad-dition thereto, defendant denies that plaintiffs are entitled to a judgment in any sum whatever. On the trial plaintiffs abandoned the first count and relied upon the second count for recovery. The evidence was voluminous and conflicting but from it, the jury, having returned a verdict in favor of the plaintiff, was authorized to find facts as follows:

(a) That Mr. A. G. Gledhill was the duly authorized agent of his daughter, the defendant Mrs. Halliburton, in connection with the negotiation and sale of the property. (See testimony James Dewitt Irwin, Record, p. 80)

(b) That the deed included a part of Norris Street. (See Plat, Record, p. 82; testimony Frank B. West, Record, p. 34 et seq.; testimony T. Joe Bishop, Record, p. 37 et seq.; testimony H. D. Cutter, Record, p. 39, et seq.)

(c) That at the time Mr. Gledhill, acting as agent for defendant, and Mr. Irwin measured and staked out property for plaintiffs, he, Mr. Gledhill, knew that the starting point at the N.E. corner of Main and Norris Streets was staked out so as to include a part of Norris Street. (See testimony F. B. West, Jr., to the effect that he had previously pointed out the Norris Street line to Mr. Gledhill, Record, p. 34 et seq.; also testimony F. Joe Bishop, to the effect that Mr. Gledhill rearranged the house to conform to line at his instance as building inspector, Record, p. 37 et seq.; also testimony A. C. Gledhill, Record, p. 92 et seq.

(d) That Mr. Gledhill, acting as agent of the defendant, made false and fraudulent...