Mitchell v. Fmitchell

• Decision Date: 31 December 1869
• Citation: 40 Ga. 11
• Parties: WILLIAM MITCHELL, plaintiff in error. v. BENJAMIN F.MITCHELL, defendant in error.
• Court: Georgia Supreme Court

40 Ga. 11

WILLIAM MITCHELL, plaintiff in error. v. BENJAMIN F.MITCHELL, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Continuance. Reformation of Deed. Mistake. Before Judge Clark. Chambers. Worth county. July 1869.

The bill of William Mitchell against Benjamin F. Mitchell and Benjamin Willis made the following case: William Mitchell owned a plantation in said county, composed of land lots Nos. 253 and 254, lying broadside to each other, and each containing four hundred and ninety acres. He supposed his residence and outhouses were on No. 254, and it contained one hundred and forty acres cleared, and was his farm. Being then eighty years old, and desiring to give some prop-erty to his children, in 1866 he conveyed No. 253 to his son, Benjamin F. Mitchell, for the use of himself and of his sisters, one of whom married Willis. The line between these lots was not distinctly marked, and when he made the deed he believed that the line of the lots run from eighty to one hundred yards north of his houses, and was marked by a fence dividing the cleared land on said lots, and when Benjamin F. Mitchell received the deed, he was of the same opinion with his father as to the dividing line. Willis acting in right of his wife, and as agent for Benjamin F. Mitchell, now claims that the dividing line so runs as to include the dwelling, most of the out-houses, and a large portion of the most valuable land of the plantation; and Willis has commenced moving the fencing, so as to expose William Mitchell\'s crops, and threatens, violently, to eject him from said house, and leave him homeless. He is old and poor, has a wife and three children dependent upon him; Willis is rich, and has much influence in the county.

He prayed a reformation of said deed, (if the line was not as he supposed,) so as to make it convey only that part of the plantation which he thought he was conveying when he made it, and that meanwhile Willis, and the others represented by *him, be enjoined from moving the fences, or otherwise interfering with William Mitchell's possession and use of that part of the plantation claimed by him. Discovery was waived. The bill was sanctioned, and injunction issued, as prayed for.

Benjamin F. Mitchell and Willis answered the bill. Benj. F. denied that at the date of the deed he understood the true line between the lots to be as his father had charged, but admitted that the line was not distinctly marked, and said he did not know what his father then thought on that subject. He said his father's object in making the deed was not a wish to provide for his children, but to keep his creditors from getting the land. The other charges in the bill were admitted, except for the purpose of doing violence to the old man, and making him homeless. They answered that there were on No. 254, houses and out-houses but little inferior to those on No. 253. Willis knew nothing of the delivery of the deed except by hearsay. They answered that they had a right to No. 253 and its appurtenances, and had, by kindness, permitted the old man to occupy said residence, etc., since the date of his deed. And lastly, they said this whole matter was res adjudicata, by a decree in their favor in a former bill filed by the old man against them.

These answers having been filed, said defendants moved to dissolve the injunction, upon the ground that the equity of the Bill was sworn off. Upon the day appointed for the hearing, William Mitchell's counsel moved to postpone it because his client was sick, and he had been unable to get affidavits to contradict said answers. The hearing was postponed till the 22d of June, 1868, and on that day, upon the same showing, was further postponed till the 7th of July, 1868, the Judge giving notice that he would postpone no more, without more definite evidence as to complainant's sickness. On that day his counsel again moved a postponement, and supported it by his affidavit that he had been informed by the old man's children that he lived thirty miles away, and was in very bad health, unable to come to consultwith his counsel, and that this ill health was caused by a *beating given him by said Willis, and that he believed these statements; and that could he consult with the old man he could procure affidavits to show that the answers as to the true line were false, that no one was present when the deed was made, but the old man and W. A. Harris, and that the true line does run as the old man supposed it did when he made the deed, i. e., with said fence, north of his house. The Judge refused to postpone the hearing longer.

The bill and answers were read. Besides their answers the defendants relied upon a sworn plat of the premises, showing that the houses, etc., were on No. 253, and on the deed which conveyed the whole of No. 253, as aforesaid. They tendered in evidence a certified copy of a verdict in these words: "Worth Superior Court. October Adjourned Term, 1868. William Mitchell v. Benjamin Mitchell. Bill for relief and injunction. We, the jury, find for the defendant, with costs of suit, this 13th December, 1868. T. W. Tison, foreman." It was objected to because it was unaccompanied by the record of the cause to which it applied. The objection was overruled. Counsel for William Mitchell produced his own affidavit, that he drew the bill to which said verdict applied, and stated its purpose, and...