Knight v. Department of Transp.

• Decision Date: 28 June 1977
• Docket Number: No. 32250,32250
• Citation: 236 S.E.2d 826,239 Ga. 368
• Parties: G. J. KNIGHT et al. v. DEPARTMENT OF TRANSPORTATION et al.
• Court: Georgia Supreme Court

Page 826

236 S.E.2d 826

239 Ga. 368

G. J. KNIGHT et al. v. DEPARTMENT OF TRANSPORTATION et al.

No. 32250.

Supreme Court of Georgia.

June 28, 1977.

Rehearing Denied July 14, 1977.

Pye, Groover & Pye, Durwood T. Pye, Atlanta, for appellants.

Arthur K. Bolton, Atty. Gen., Bruce M. Edenfield, Atlanta, Patrick, Sidener, Bryant & Hamner, Griffin Patrick, Jr., East Point, Henry R. Bauer, Jr., William R. Bassett, Atlanta, for appellees.

HALL, Justice.

This appeal brought by Mr. and Mrs. Knight is a continuation of the litigation in Department of Transportation v. Knight, 238 Ga. 225, 232 S.E.2d 72 (1977), involving the now-defunct Georgia Interstate Highway I-485. The facts were set forth in that decision and require no repetition. Our ruling in the cited decision was made upon the Department's interlocutory appeal. We ruled that Counts 8 and 10 of the Knights' petition failed to state a claim for relief. The Knights' attempted cross-appeal, urging error in the dismissal of the remaining counts of their eleven-count complaint, was dismissed as not properly before this court upon the Department's interlocutory appeal. The issues now ripe for decision on this appeal include whether these counts were properly dismissed.

The land in question was the site of the Knights' former home. Their equitable petition sought cancellation of the deed by which they conveyed it to Department for the projected highway, plus damages and other relief. The deed was executed September 20, 1967. The petition was filed April 9, 1975.

1. a. The Knights' assertion in Court 1 that the deed is void because the recited consideration of $1 was never paid, is without merit. We wrote in the earlier decision that consideration was actually paid and accepted. 238 Ga. at 228, 232 S.E.2d 72. Specifically, the Knights were paid $11,475 for this land, receipt of which they do not dispute. In any event, failure to pay the recited consideration will not alone void the deed. Harry v. Griffin, 210 Ga. 133, 78 S.E.2d 37 (1953) b. Nor is the deed void for mutual mistake, the alleged mistake being failure to know that the highway would not be built. The kind of mistake for which equity may cancel a contract is a mistake of a past or present material fact. Callan Court. Co. v. C & S National Bank, 184 Ga. 87, 130-131, 190 S.E. 831 (1937). The Knights urge that a then-"present" mistake was made in believing the highway would be built; but if this were true, there would be nothing left of the principle that mistake as to a future event is not relievable in equity. Here, at the time the deed was made, the highway was truly scheduled to be built. There was no "mistake."

Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958), argued by the Knights, is not in point. In Whipple, through the mistake of not knowing how the construction was to be done the landowners were in effect denied the chance to prove the actual consequential damage to their remaining land. Here, there was an outright sale of all land; the Knights have no remaining economic interest in the use to which the Department subsequently puts the land.

2. The Knights' allegation in Count 2 that they are entitled to relief because "I-485 has been abandoned", is somewhat unclear. To the extent that this claims an automatic reverter to the former landowner, we have decided otherwise in an earlier I-485 decision, Sadtler v. City of Atlanta, 236 Ga. 396, 223 S.E.2d 819 (1976). See also Department of Transportation v. Knight, supra. The Department is entitled to put the land to other uses. Code Ann. § 95A-622. In any event, since we ruled in the earlier appeal that Department acquired fee simple to the land, it makes no difference if they decide to abandon a projected use of it.

3. In Count 3, the Knights asked relief because "said writing was delivered under the threat of eminent domain by said Department. . . ." The Knights make no claim of fraud. The claim here is that duress should void the contract.

Duress is described in Code Ann. § 20-503: " . . . duress . . . by which the free will of the party is restrained and his consent induced, will render the contract voidable at the instance of the injured party." The proper method would be by bringing a suit in equity. See Payne v. Terhune, 212 Ga. 169, 91 S.E.2d 348 (1956). The Knights have done this. The applicable statute of limitations, however, is that applicable to equity suits, namely seven years. Stephens v. Walker, 193 Ga. 330, 331, 18 S.E.2d 537 (1942); Harris v. Neuman, 179 Ga. 879, 177 S.E. 698 (1934). This deed was executed September 20, 1967 and suit was brought April 9, 1975. This claim accordingly is barred because the period of limitations had run.

The Knights contend, however, that this is not a suit in equity subject to such a limitation, but is a "complaint for the recovery of land."

In Wright v. Conner, 200 Ga. 413, 37 S.E.2d 353 (1946), it was said that there is no statute of limitations in respect to an action to recover realty, as the code has substituted title by prescription for the statute. But that is inapplicable here; there is no issue of prescriptive title in this case, nor is there any void (as opposed to voidable) deed. This is a suit in equity.

"A suit by a grantor against a grantee, to cancel a deed conveying land, on the ground of fraud practiced by the grantee inducing execution of the deed, and to recover possession of the land and mesne profits, is not a suit respecting title to land, . . . but is a suit for equitable relief ....