Shaw v. Miller

• Decision Date: 13 October 1959
• Docket Number: No. 20606,20606
• Parties: Idus N. SHAW et al. v. James B. MILLER.
• Court: Georgia Supreme Court

Page 759

110 S.E.2d 759

215 Ga. 413

Idus N. SHAW et al. v. James B. MILLER.

No. 20606.

Supreme Court of Georgia.

Oct. 13, 1959.

Syllabus by the Court

1, 2. The court did not err in sustaining the demurrers of the plaintiff to the answer of the defendants.

3. The answer being properly stricken, and there being no issue of fact for consideration by the jury, the court did not err in granting specific performance of the contract to make a will devising the described property to the plaintiff and in decreeing title in the plaintiff.

Sheats, Parker & Webb, Harold Sheats, Atlanta, for plaintiff in error.

Calhoun & Calhoun, Atlanta, for defendant in error.

ALMAND, Justice.

This is a suit for specific performance of a contract in writing against the heirs at law of Mrs. Lillian S. Rivers. James B. Miller alleged in his petition as amended that by warranty deed, dated April 14, 1953, he conveyed a tract of land to Lillian S. Rivers; that said deed was reformed in the case of Miller v. Shaw, No. A-48676, Fulton Superior Court, which case was affirmed by the Supreme Court (Shaw v. Miller, 213 Ga. 511, 100 S.E.2d 179), to state the true consideration for the conveyance, to wit: 'The promise of Lilliam M. Rivers, the Grantee, to will and devise the property described in the deed to James B. Miller, the Grantor,' a copy of said deed as reformed being attached to the petition; and that Mrs. Rivers died intestate, thereby failing to perform her agreement to will the described property to him. Without demurring to the petition, the defendants filed their answer, which denied the plaintiff's right to the relief sought.

Error is assigned on the final judgment and decree of the trial court, entered May 29, 1959, which sustained the plaintiff's demurrers to the answer as amended and rewritten, and granted the specific performance of the contract; and on the antecedent order of October 27, 1958, which sustained in part and overruled in part plaintiff's demurrers to the answer, and ordered the defendants to rewrite their answer; and on the order of December 15, 1958, requiring said rewritten answer to be submitted within 15 days from that date.

1. (a). The ruling of the trial court in the order of October 27, 1958 that the defendants were not entitled to retry the issues which had been resolved against them in the suit for reformation of the deed from the plaintiff to their intestate, to which suit the defendants were parties defendant, in this suit for specific performance of the contract embodied in the reformed deed, is correct; and the court did not err in sustaining the demurrers to those protions of the answer which alleged facts and circumstances inconsistent with and repugnant to the reformed deed. The sole purpose of the suit for reformation was to determine the true agreement of the parties. Wyche v. Greene, 16 Ga. 49(4). Having made that determination--the deed as reformed related back and took effect from the time it was originally executed. Wyche v. Greene, 11 Ga. 159(7). Accordingly, the defendants herein having been parties defendant in that suit for reformation, the judgment granting reformation is conclusive between the parties as to all matters which were in issue, or which under the rules of law might have been put in issue in that suit. Code, §§ 110-501, 38-623; Smith v. Robinson, 214 Ga. 835 (1), 108 S.E.2d 317, 318. 'Questions settled by a former final judgment must be considered an end of litigation; they can not be litigated in other actions, directly or indirectly. Lankford v. Holton, 196 Ga. 631, 27 S.E.2d 310.' Smith v. Robinson, supra (2).

(b). As will be shown in division 2 of this opinion, the trial court did not err in the order of October 27, 1958, in sustaining the demurrers to those portions of the defendants' answer which alleged events occurring subsequently to the making of the contract and conveyance of the property to the defendants' intestate.

(c). The trial judge, having properly sustained the demurrers to the defendants' answer as amended, did not err in his order of October 27, 1958, as supplemented by the order of December 15, 1958, in requiring the defendants to rewrite their answer. 'If the legal rights of the parties are not prejudiced or denied, this court will not interfere with the discretion of the trial court in matters of practice in the hearing and disposition of causes before it unless this discretion has been exercised in an illegal, unjust or arbitrary manner.' International Ass'n of Machinists v. Street, 215 Ga. 27(3), 108 S.E.2d 796, 804.

2. It is further contended by the defendants that the court erred in sustaining the plaintiff's demurrers to those portions of their answer, amended answer, rewritten answer, and amended rewritten answer which attempted to set up the defense of unfairness of the contract and inadequacy of consideration in denial of the plaintiff's right to the relief sought. In substance three attacks were made on the fairness of the contract and adequacy of consideration: (1) that subsequently to the conveyance of the property to their intestate, she erected a brick residence of the value of $7,500 on the property; (2) that, at the time the plaintiff conveyed the property to their intestate, he knew that she was going to erect said residence on the property; and (3) that the use of the land with a rental value of $40 per year for the life expectancy of their intestate of 10.75 years was not sufficient consideration to support specific performance and a decree of title in the...