Parnell v. Wooten
| Decision Date | 10 July 1947 |
| Docket Number | 15883. |
| Parties | PARNELL v. WOOTEN et al. |
| Court | Georgia Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
The allegations of the petition to the effect that the defendants, pursuant to a conspiracy to defraud the petitioner, wrongfully inserted, in a deed they had procured the petitioner to sign in blank, a description of lote in addition to the lot contracted to be sold, and that the defendants were endeavoring to sell the property to innocent third persons, were sufficient, as against the general and special grounds of demurrer interposed by the defendants, to set forth a cause of action for equitable relief, and the trial court erred in dismissing the petition as to each of the defendants.
J. F. Parnell filed in Cobb Superior Court against J. Y. Wooten and C. W. Whitehead, residents of Cobb County and W. E. Gunnells, a resident of Spalding County, a petition which alleged substantially the following: Subject to the equities hereinafter set forth, the petitioner is the owner of a described tract of land that formerly belonged to his wife, Mrs. Ida Parnell, who owned said lands, together with other lands which are more particularly shown by a plat attached to the petition and made a part thereof, the plat showing a subdivision of the lands of Mrs. Parnell consisting of 4 lots. Mrs. Parnell is the owner of lots 3 and 4. Prior to August 5, 1944, the petitioner listed lot 2 with the defendant Wooten, who was a real estate agent, and authorized him to sell lot 2 for the sum of $3500. On August 5, 1944 Wooten represented to the petitioner that he had a purchaser for lot 2 at the price of $3500, but that the purchaser desired to pay $750 cash, assume the loan and give a note for the balance of the purchase price which was to be secured by the lands. At that time the petitioner was about to leave for Florida and California to be gone for several weeks, and as Wooten was unable to prepare the deeds and other necessary papers before the petitioner's departure, Wooten procured the petitioner to sign a deed in blank with the understanding that he, Wooten, would fill in the description of lot 2 in accordance with the terms of the sale and from the petitioner's deeds and papers which had been turned over and entrusted to Wooten. After the petitioner left, Wooten had the deed made out, not to cover lot 2 only, but so as to include a description of all the lands shown on the plat for some consideration, the exact amount of which is unknown to the petitioner. Wooten likewise collected the cash consideration from the transaction and took a note which was made payable to the petitioner in the sum of $750, but failed and refused to turn the note over to the petitioner. The deed that the petitioner signed in blank was afterwards made out to Gunnells, conveying all four of the lots shown on the plat, and Wooten and Gunnells at the time of the transaction conspired to take advantage of the petitioner's absence and to incorporate in the deed a description of lots numbers 1, 3, and 4, as well as a description of lot number 2, in an effort to cheat and defraud the petitioner. Pursuant to the conspiracy and in order to conceal their acts from the petitioner, the defendants withheld the deed from record for a period of approximately eighteen months. Gunnells notified Mrs. Parnell that he had a deed to lots 3 and 4. Upon his return, the petitioner called on Wooten for the purpose of finding out how a description of any lots other than lot 2 was inserted in the deed in violation of understanding that only lot 2 was to be conveyed, whereupon Wooten stated that it was through error, and agreed that he would have the error corrected. Wooten has failed and neglected to correct the error. In discussing the matter with Wooten, the petitioner proposed that the transaction be rescinded, and offered to return to him the cash payment together with the note for the unpaid balance and any expense that Gunnells had sustained by reason of the transaction. While such negotiations were pending, Wooten offered lot 2 for sale and proceeded to make conveyances of some kind to the defendant Whitehead, who had actual knowledge of the controversy between the petitioner and the defendants Wooten and Gunnells as to the error in the description in the deed. The deed which the petitioner signed in blank, in which Wooten with the knowledge of Gunnells fraudulently inserted a description of lots 1, 3, and 4, constitutes a cloud on the title of the petitioner and his wife as to the lots, and by reason of the fraud the petitioner is entitled to have the deed reformed so as to carry out the real intent of the parties, and so as to remove the cloud on the title to lots 1, 3, and 4. The defendants are endeavoring to sell the lots and to place the title in innocent purchasers in an effort to prevent the petitioner from obtaining redress for the wrong complained of. By reason of the fraud the petitioner has been prevented from selling lot 1, and unless the defendants are enjoined the damage will be irreparable. The petitioner has at all times offered and now offers to do equity by restoring the status of all parties as may be determined by the court, and such offer is a continuing one, and he asks that the defendants be required to do all things necessary on their part to restore the status in accordance with the principles of equity. The defendants were called upon to produce at the trial various deeds, notes, and papers that were given in the above transaction. The petitioner prayed: (1) That process issue and that a second original issue, directed to the sheriff of Spalding County, for service on defendant Gunnells; (2) that the deed signed by the petitioner to Gunnells be reformed so as to speak the truth of the transaction, and that so much thereof as purports to convey lots 1, 3, and 4, be cancelled as a cloud upon the petitioner's title; (3) that, if the equitable relief prayed for cannot be granted, then the deed be cancelled and the transaction be rescinded in accordance with the principles of equity and justice; (4) that Wooten and Gunnells be required to account for the notes and security deed given as a part of the consideration and for any and all amounts which may be found to be due and owing to the petitioner in the premises; (5) that the defendants be temporarily restrained and permanently enjoined from conveying, encumbering or changing the status of the lands referred to, and that a rule nisi issue; (6) that the petitioner have general equitable relief.
Separate general demurrers were interposed to the petition by each of the defendants, and separate special demurrers were interposed by the defendants Wooten and Gunnells. The trial court overruled certain general and special grounds of demurrer. Other general and special grounds of demurrer were sustained, and the trial court in separate orders dismissed the petition as to each of the defendants. The plaintiff in a direct bill of exceptions excepted to the judgments in so far as the general and special grounds of demurrer were sustained, and to the judgments dismissing the petition as to each of the defendants.
Frank Grizzard, John I. Kelley and Kelly, Hamrick & Coogler, all of Atlanta, for plaintiff in error.
Schroeder & Walker and Geo. D. Anderson, all of Marietta, for defendants in error.
ATKINSON, Justice (after stating the foregoing facts).
The defendants Wooten and Gunnells demurred to the petition on the ground that it affirmatively shows that Gunnells is a resident of Spalding County, and that no substantial affirmative equitable relief is prayed against Wooten and Whitehead, the other two defendants in said cause, and, therefore, Cobb Superior Court has no jurisdiction over any of the defendants. The court overruled the above ground, along with other grounds of demurrer, and so far as appears in the record there were no exceptions to these rulings. Consequently no question as to whether the Superior Court of Cobb County had jurisdiction of the defendants is presented for decision.
'A general demurrer to a petition will not be sustained if the facts entitle the plaintiff to any of the substantial relief prayed.' Arteaga v. Arteaga, 169 Ga. 595, 151 S.E. 5, 7. Since the passage of the uniform procedure act, where a suit is filed in a superior court, which has general jurisdiction both in law and in equity, the petition is not subject to general demurrer on the ground that the petitioner has an adequate remedy at law, if it states a cause of action for either legal or equitable relief. Code, §§ 37-901, 37-907; Pardue Medicine Co. v. Pardue, 194 Ga. 516, 22 S.E.2d 143.
In Boyd Lumber Co. v. Mills, 146 Ga. 794(1), 92 S.E. 534, L.R.A. 1918A, 1154, it was held: However, it was held in the above case that such a deed could be ratified.
The plaintiff states in his petition that he has at all times offered and now offers to do equity by restoring the status of all parties as may be determined by the court, and that such offer is a continuing one. A court of equity may mould its decree and require one seeking equity to do equity. Code § 37-1203. 'Equity seeks always to do complete justice; and hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject-matter of the suit.' Code, § 37-105.
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