McCommons v. Greene County
| Decision Date | 20 March 1936 |
| Docket Number | 24871. |
| Citation | 184 S.E. 897,53 Ga.App. 171 |
| Parties | McCOMMONS v. GREENE COUNTY. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The grantor in a deed conveying a right of way, which also released the grantee from damages resulting from the construction of a road, cannot, without rescinding or tendering back the consideration which was paid for the deed in a suit by the grantor against the grantee to recover damages to her land resulting from the construction of a road by the grantee along the right of way conveyed, attack the deed on the ground that it was misread to her by the grantee's attorney before she signed it, and that the attorney omitted to read that part of the deed which released the grantee from such damages. The provisions of the deed which were pleaded as a defense to the suit for damages against the defendant by the grantor of the deed released the defendant from any liability to the plaintiff for the damages sued for, and the court did not err in striking the amendment to the plaintiff's petition in which the deed was attacked for fraud, and, as the deed was introduced in evidence, the court did not err in directing a verdict for the defendant.
Error from Superior Court, Greene County; James B. Park, Judge.
Action by Mrs. Len McCommons against Greene County. Judgment for defendant, and plaintiff brings error.
Affirmed.
Jos. P Brown, of Greensboro, for plaintiff in error.
Noel P Park and J. G. Faust, both of Greensboro, for defendant in error.
Mrs McCommons sued Greene county for damages to her land resulting from the construction of a highway along a part of the land. She alleged that the county had built a high embankment which acted as a dam preventing the drainage of surface water from the land and forming a basin or pond on the most fertile part of the land which was rendered unfit for cultivation, etc.
The defendant denied the material allegations as to liability, and set up a special defense in that the plaintiff had made a deed to the highway board of a right of way, which deed contained a release in these terms: "And for the same consideration, I do further grant the right to all necessary drainage in the construction and maintenance of said road constructed over the said right of way and on my lands adjacent thereto, and also release said county and state highway board from any claim of damage arising on account of construction of said roads or fills and embankments, ditches or culverts or bridges, on account of back water, changing of courses of streams, or in any other manner."
The plaintiff tendered an amendment to her petition in which she alleged that the release set up by the defendant was not made known to her when she signed the deed nor before; that she had previously talked the matter over with the attorney of the grantee, and the understanding between them was that she would convey a right of way over her land for a certain sum, but nothing was said about her releasing any claim for damage to the land caused by construction of the road; that the county attorney came to her home early in the morning and said he was in a hurry to get back to town, and that he would read the deed to her; that he stood at the hall door and read that portion of the deed transferring the right of way, but did not read the release referred to in paragraph 2 of the defendant's answer; that she does not say the omission to read such condition was not from inadvertence and haste, but says it was not read nor made known to her; that she did not find out about the release from damages until defendant's answer in this case was filed and after the portion of the highway touching her place had been completed; that the release "should not operate against her in this suit, as its so operating would result in a legal wrong against plaintiff for which she is in no sense blamable, and would amount to defendant's taking advantage of its own wrong without fault on her part"; and that the defendant is estopped from setting up the plea. Other allegations in the amendment are unimportant. The court allowed the amendment subject to demurrer.
During the trial the defendant orally moved to strike the amendment on the grounds that it did not set out any legal or actual fraud, and failed to set out facts sufficient to show such fraud, and that there was no offer to turn back the consideration which the defendant had paid. The court sustained this motion, and the plaintiff excepted. Notwithstanding this striking of the plaintiff's amendment,...
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