Rawson v. Brosnan

• Decision Date: 10 January 1939
• Docket Number: 12598.
• Citation: 1 S.E.2d 423,187 Ga. 624
• Parties: RAWSON et al. v. BROSNAN.
• Court: Georgia Supreme Court

1 S.E.2d 423

187 Ga. 624

RAWSON et al. v. BROSNAN.

No. 12598.

Supreme Court of Georgia

January 10, 1939

Rehearing Denied Feb. 23, 1939.

Bennet & Peacock, of Albany, for plaintiffs in error.

Farkas & Burt, of Albany, for defendant in error.

Syllabus Opinion by the Court

JENKINS Justice.

This was an equitable proceeding for partition, injunction, and receiver, by the holder of a security deed and a sheriff's deed after foreclosure, covering an undivided one-half interest in realty, against the grantor of the security deed and a subsequent grantee holding a junior security deed, who together owned the other half interest. There was but one issue, and this was raised by the plea of the two defendants, to wit, whether by a mutual mistake the plaintiff's security deed of the half interest in 406 1/2 acres more or less covered 10 acres 'immediately around [a] mill site and [the] mill site' on the described property, and whether the defendants were entitled to a reformation of the instrument by excluding this smaller tract from the partition. It was agreed in open court that the plaintiff's deed 'contained words of description sufficient to cover and convey the land in question,' and that the recorded surveyor's map referred to in the deed also covered such land. The defendant grantor testified that the entire tract, including the disputed 10 acres, contained 416 or 417 acres, instead of 406 1/2 acres as described in the deed; and he swore generally that the security deed and the loan did not cover the disputed land, that it was not the intention of either party for it to do so, and that such an inclusion was a mistake. He further testified, however, that 'No error is made in the deed that I know of;' that 'I never mentioned the 10 acres around the millsite;' and that the grantee 'didn't even know about the 10 acres * * * it was never mentioned or discussed.' The court directed a verdict against the defendants' plea for reformation, to which they excepted.

1. Equity will not reform a written contract on account of a mistake unless the mistake was one of both parties. Some particular mutual mistake and how it occurred must be alleged and plainly shown. Code, §§ 37-207, 37-208, 37-202; Helton v. Shellnut, 186 Ga. 185(1-a), 197 S.E. 287 and cit.; Crim v. Alston, 169 Ga. 852, 151 S.E. 807. Accordingly, under the general rule that a party's own testimony is to be construed most strongly against him, the defendant grantor was not entitled to reformation.

2. Nor was the grantee in the second security deed entitled to a reformation in the first deed, even though it might be held that as to him the evidence of his co-defendant could be taken to indicate that the first security deed did contain an incorrect description due to a mutual mistake of the parties thereto, since the second grantee, being a stranger to the prior security deed from his grantor to another person, is not entitled to reformation of the first deed. Garlington v. Blount, 146 Ga. 527(1), 91 S.E. 553.

Especially is this true where, as here, the junior deed expressly recites the existence of the previous security deed and lien; and under such circumstances the holder of the junior deed will not be permitted to deny the truth of such recital by showing that the disputed land covered by the previous instrument, was not so intended. Setze v. First National Bank, 140 Ga. 603, 606, 79 S.E. 540; Jenkins v. Southern Ry. Co., 109 Ga. 35, 40, 34 S.E. 355, and cit.; Long v. Bullard, 59 Ga. 355(3).

3. In accordance with the foregoing rules, the court did not err in directing the verdict against both of the defendants and in refusing a new trial.

Judgment affirmed.

All the Justices concur, except BELL, J., who dissents.

On Motion for Rehearing.

While counsel for the plaintiff in error do not seem to question the correctness of the decision in this case under the rules announced in the first division of the syllabus and the last paragraph of the second division, they do attack the rule stated in the first paragraph of the second division, and in their motion for rehearing assail as unsound the ruling by this court in Garlington v. Blount, 146 Ga. 527, 91 S.E. 553, on which that portion of the present decision was based. The Garlington case held as follows:

'Where one executes two security deeds conveying the same property to different parties, the grantee in the second deed cannot maintain a suit in equity to reform the first deed, although the description may be incorrect and be due to the mutual mistake of the parties. This is true because the second grantee has no privity in the estate conveyed in the first deed. Equity will correct mutual mistakes between the 'original parties or their privies in law, in fact, or in estate.' Civil Code 1910, § 4573 [Code, 1933, § 37-213]. It cannot be contended that the plaintiff is privy in law or in fact. He is not a privy in estate, because 'a privy in estate is a successor to the same estate, not to a different estate in the same property.' The grantee in the second deed is a stranger to the contract between the parties to the first deed, holds adversely thereto, and hence is not bound by its terms. To entitle one to maintain such an action as the present, he must be a party, or a successor to the party under the same contract. Pool v. Morris, 29 Ga. 374, 382, 74 Am.Dec. 68.' Counsel in their motion submit that the rule as thus stated in the Garlington case is manifestly erroneous. Their position is that it would...