Minor v. Fincher
| Decision Date | 15 March 1950 |
| Docket Number | No. 16976,16976 |
| Citation | 206 Ga. 721,58 S.E.2d 389 |
| Parties | MINOR et al. v. FINCHER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where the sole evidence relied upon by the plaintiff, to establish the land lot lines of a particular lot of land claimed by her, is the testimony of a surveyor, who states that his survey is based upon information given him by a person who did not testify, there was no competent evidence to support a verdict in an action for timber alleged to have been wrongfully cut and carried away from the plaintiff's lands.
2. In an action by a grantee to reform the description in a deed on the ground of mutual mistake of the parties, it is not error for the court to admit in evidence the deed sought to be reformed, prior to proof that the description therein was the result of a mutual mistake.
3. Reformation of the description in a deed on the ground of mutual mistake will be granted in a court of equity, where the evidence is clear, unequivocal, and decisive as to the mistake.
4. Testimony which might authorize an inference that a plaintiff seeking reformation has not been diligent in the discovery of an alleged mistake, is insufficient to make a jury issue on an affidavit charging forgery of the original deed, where the subscribing witnesses to such deed testify positively that it was executed by the grantor named therein.
5. Where damages are sought against a resident and non-resident defendant for the alleged wrongful cutting of timber, it is error for the court to instruct the jury that, if they find for the plaintiff, the verdict must be against both defendants.
6. In all actions where the plaintiff recovers for timber cut and carried away, the measure of damages is that fixed by the Code, § 105-2013.
Mrs. Cleone M. Fincher filed an action on February 12, 1946, in the Superior Court of Upson County, against L. L. Minor and A. C. Rogers, and in substance alleged: Rogers is a resident of Upson County, and Minor is a resident of Taylor County. The defendants have jointly injured and damaged the plaintiff in the sum of $9587.50. Prior to May 3, 1945, and at all times hereinafter referred to, the plaintiff was the owner of land lot 263 in the First Land District of Upson County, Georgia, containing 202 1/2 acres, more or less. Between June 1, 1943, and December 31, 1944, the exact date being unknown to the plaintiff, the defendants 'cut and carried away' 325,000 feet of pine timber from her described lands. The cutting and carrying away of the timber was 'wilful,' in that the defendants had no claim to the land or timber thereon. The fair market value of the timber at the time of bringing this suit was $29.50 per thousand. The prayers were for process and that a second original issue for service upon the defendant Minor.
On August 3, 1948, the plaintiff amended her petition by striking the figure '9587.50' in the first paragraph, and substituting the figure '$13,650,' and by striking the paragraph alleging the value of timber, and substituting the following: 'Plaintiff shows that the fair market value of said timber so converted by the defendants in Upson County, Georgia, at the time of bringing this suit is $42 per thousand, a total of $13,650.' The prayer was that the amendment be allowed.
On August 16, 1948, the plaintiff further amended her petition by alleging: On March 17, 1940, Mrs. Alice S. Crandall conveyed to her by quitclaim deed Land Lot 263 in the First Land District of Crawford County, Georgia, containing 202 1/2 acres, more or less (and further describing the land). There is no Land Lot 263 in the First Land District of Crawford County. 'Upon County was partly carved out of Crawford County, and prior to the creation of Upson County there was a Land Lot 263 in the First Land District of Crawford County.' What was formerly Lot 263 in the First Land District of Crawford County is now Lot 263 in the First Land District of Upson County. There was for many years confusion as to the location of the true line between Upson and Crawford Counties. The only tract of land owned by Mrs. Crandall on March 17, 1940, which had at any time been situated in the First Land District of Crawford County was Lot 263 in the First Land District of Upson County. At the time of making the conveyance, 'the grantor, Mrs. Alice S. Crandall, intended to convey, and plaintiff intended to buy, Land Lot 263 in the First Land District of Upson County.' The description of the property as being Land Lot 263 in the First Land District of Crawford County was occasioned by the mutual mistake of both parties, and contrary to the true intention of the parties. Mrs. Crandall died a resident of Bibb County on January 8, 1948. Her will was duly probated in solemn form and letters testamentary have been granted to H. D. Russell, of Macon, the executor nominated in her will. The deed from Mrs. Crandall to the plaintiff should be reformed, and as reformed, the description should read: 'All of Land Lot 263 in the First Land District of Upson County, Georgia, containing 202 1/2 acres, more or less.' The executor of the will of Mrs. Crandall should be made a party. The prayers were that the amendment be allowed, that H. D. Russell, as executor of the will of Mrs. Crandall, be made a party, that the deed be reformed as set out in the petition, and for other relief.
Service of the amendment seeking reformation of the deed of Mrs. Crandall to the plaintiff was acknowledged by H. D. Russell, as executor of the will of Mrs. Crandall, and he consented to be made a party. As such executor, he filed an answer on November 3, 1948, admitting the allegations of the petition seeking reformation, and consented 'that said deed be reformed as prayed.'
On March 19, 1946, the defendants filed their answer and denied that they had damaged the plaintiff in the sum alleged, or in any sum. They admitted the allegations as to their residence, and denied the other allegations of the petition. On August 24, 1949, the defendants amended their answer, denying that they cut any timber on Land Lot 263 in the First Land District of Upson County. On November 1, 1948, the defendant Minor filed an affidavit attacking the deed from Mrs. Alice S. Crandall to the plaintiff as a forgery.
Upon the trial of the case the jury returned a verdict for the plaintiff for $6000. On the direction of the court, the jury found against the affidavit of forgery, and for the reformation of the deed from Mrs. Crandall to the plaintiff. The defendants' motion for new trial, as amended, was overruled, and the exception is to that judgment.
Wyatt, Morgan & Sumner, La Grange, W. J. Wallace, Roberta, Crawley & Crawley, Thomaston, for plaintiffs in error.
Martin, Snow & Grant, Macon, Harris, Harris, Russell & Weaver, Macon, H. D. Russell, Macon, John H. McGehee, Jr., Thomaston, for defendants in error.
1. (We will refer to the parties in this opinion as they appeared in the court below:) In ground one of the amended motion for new trial, it is contended that the verdict for the plaintiff was so excessive in amount as to evidence bias and prejudice on the part of the jury, was without competent evidence to support it, and was contrary to law and the evidence. It is asserted that the evidence did not warrant a finding that there was a wilful and intentional trespass by the defendants, but demanded a finding to the contrary; and that the evidence on behalf of the plaintiff was too vague and indefinite to prove the amount of timber cut from the land she claimed, or the market value of the lumber manufactured from the timber. This ground of the amended motion may therefore be considered in connection with the general grounds.
The plaintiff relied upon the testimony of W. A. Gordy to establish the amount of timber alleged to have been cut by the defendants from Lot 263 in the First Land District of Upson County, to which the plaintiff claimed title. This witness testified: In the summer of 1946 he went with Mr. Burrus Smith to 'stump cruise' timber cut from Lot 263. Mr. Smith pointed out the lot, and the witness cruised the timber cut from it. The witness was not able to cruise all of the timber because part of the land was grown up in briars. From the appearance of the stumps he saw, it looked like the timber had been cut two or three years; some few trees near the south line had been cut more recently than the others. His estimate did not include the trees not cruised, and, eliminating those entirely from his calculations, 165,000 feet of 'lumber' had been cut.
It is clear from the testimony of the plaintiff (who was called for the purpose of cross-examination by the defendants) that she was not in actual possession of the land claimed by her, nor did she know of her own knowledge the location of the lines around Lot 263. She relied upon the testimony of Burrus Smith, who testified that he was the County Surveyor of Upson County, that he had surveyed three of the lines of Lot 263 in the First Land District of Upson County, and that he had made a plat from a survey made by him at that time. The witness Smith did not testify that the plat made by him was correct, nor does the plat contain a certificate by the surveyor that it is correct. The duly certified copies of the original surveys of Crawford and Upson Counties (from the office of the Secretary of State), which were admitted in evidence, disprove any contention that the surveyor's plat is correct. On cross-examination, the witness Smith described the method employed by him in locating the lines of Lot 263 in Upson County, in the following language: ...
To continue reading
Request your trial
-
Abernathy v. Rylee, 17885
...if sustained, would result in subjecting the plaintiff to loss for unlawfully removing the timber. Code, § 105-2013; Minor v. Fincher, 206 Ga. 721, 733, 58 S.E.2d 389. The plaintiff's allegations as to what occurred are not in the alternative. His allegations are positive, direct, and It is......
-
Klingshirn v. McNeal
...140 Ga.App. 291, 292(2), 231 S.E.2d 808 (1976); Milltown Lumber, 5 Ga.App. at 344-345(1)-(3), 63 S.E. 270. But see Minor v. Fincher, 206 Ga. 721, 733(6), 58 S.E.2d 389 (1950). ...
-
BL Ivey Construction Co. v. Pilot Fire and Casualty Co.
...Ga. 500, 111 S.E.2d 89 (1959); see, especially, Hood v. Connell, 204 Ga. 782, 783, 51 S.E.2d 853 (1949), and Minor, et al. v. Fincher, et al., 206 Ga. 721, 58 S.E.2d 389 (1950), which demonstrate the difficulty of showing a mutual mistake calling for reformation. A mutual mistake is general......
-
Fulghum Industries, Inc. v. Pollard Lumber Co.
...342, 100 S.E.2d 94; Kelly v. Locke, 186 Ga. 620, 198 S.E. 754; Vaughan v. Farmers etc., Bank, 146 Ga. 51, 90 S.E. 478, and Minor v. Fincher, 206 Ga. 721, 58 S.E.2d 389. We do not think that Central Truckaway is in point. The charge dealt with there was substantially different from that here......