Hill v. Agnew

• Court: Georgia Supreme Court
• Writing for the Court: WYATT, Justice.
• Citation: Hill v. Agnew, 199 Ga. 644, 34 S.E.2d 702 (Ga. 1945)
• Decision Date: 03 July 1945
• Docket Number: 15222.
• Parties: HILL v. AGNEW.

34 S.E.2d 702

199 Ga. 644

HILL v. AGNEW.

No. 15222.

Supreme Court of Georgia

July 3, 1945

Rehearing Denied July 23, 1945.

Syllabus by the Court.

The trial judge did not abuse his discretion in denying an interlocutory injunction.

Hill sought to enjoin Agnew from cutting sawmill timber on described land purchased by the plaintiff from the defendant. Agnew answered, admitting the conveyance of the land to the plaintiff by warranty deed, but contending that 'by accident, mistake, and omission there was no reservation made of the timber' in the deed, and there was an express oral understanding at the time of the sale that the timber did not pass under the deed; that by accident, omission, and mistake 'the defendant did not put any reservation in the deed for the timber,' and 'the defendant was free from negligence or fault in saying he traded'; that the consideration of $2,500 expressed in the deed did not include the timber; and that the defendant had cut about half of the timber before the plaintiff made any complaint. The defendant prayed for a reformation of the deed so as to embody a reservation of the sawmill timber.

On the interlocutory hearing, the plaintiff swore by affidavit that prior to the execution of the deed, and during the negotiation of the sale, 'the defendant stated that he wanted to reserve the timber, to which statement by the defendant the plaintiff made no objection, but that at no time was there any agreement that the defendant was to have the saw timber,' and that the deed was the product of the defendant, having been prepared while the plaintiff was out of the State. Called for cross-examination, the plaintiff testified that 'in all conversations he did not buy the timber on the lands in question, and the only difference was the location of the corners or land lines,' and 'he understood in his negotiations with the defendant that the defendant was to reserve the timber.' Affidavits on behalf of the defendant showed the plaintiff's admission after the sale that he had not purchased the timber, but that he stated he was going to hold it under his deed. The defendant swore that the purchase price of $2,500 did not include the timber, and by accident the reservation was left out of the deed, 'he trusting Mr. Hill (the plaintiff) that he would not claim the timber.' An interlocutory injunction was denied, and the plaintiff excepted to that judgment.

Jesse M. Sellers, of Summerville, for plaintiff in error.

Rosser & Rosser, of La Fayette, for defendant in error.

WYATT Justice.

1. Since the demurrer to the answer was not passed upon by the court below, no ruling is here made as to the sufficiency of the answer to set up facts authorizing a reformation of the deed because of a 'mutual mistake' in its execution; but the answer, which constitutes a part of the evidence, must be considered along with other evidence in determining whether the court abused its discretion in denying an interlocutory injunction.

The burden of the argument advanced by counsel for the plaintiff in error is that in this case there is an insufficient showing of diligence on the part of the defendant in error; that 'a party to a contract who can read must read or show a legal excuse for not doing so, and ordinarily, if fraud is the excuse, there must be such fraud as prevents the party from reading.' We recognize the rule that 'equity will not reform a written contract because of mistake as to the contents of the writing on the part of the complaining party (who was able to read) and fraud of the other party, which consists only in making false representations as to such contents, on which the complaining party relied as true because of confidence in the party making them, no fiduciary or confidential relation existing between the parties, and no sufficient excuse appearing why the complaining party did not read the contract.' Weaver v. Roberson, 134 Ga. 149, 67 S.E.

662; Green v. Johnson, 153 Ga. 738, 748-749, 113 S.E 402, 408. But, as stated in the Green case, supra, 'We do not think that this principle should be extended to cases in which it is sought to reform written instruments on the ground of mutual mistake of fact. It has been proclaimed and applied by this court only in cases where parties have sought to be relieved from their contracts, or have undertaken to have instruments reformed, on account of fraud perpetrated by one of the parties on the other. * * * In all cases where the form of the conveyance or instrument is, by mutual mistake, contrary to the intention of the parties in their contract, equity will interfere to make it conform thereto. * * * In such cases negligence of the party complaining will not defeat his right to reformation, if the other party has not been prejudiced thereby. * * * In the case at bar the defendant will not be prejudiced by the reformation of this instrument, so as to make it speak the true contract between him and the plaintiff. If he gets what he bought, then he cannot be hurt by reforming the instrument, so as to keep him from getting what he did not buy.' See...