Simmons v. Wooten

• Decision Date: 06 July 1978
• Docket Number: No. 33564,33564
• Citation: 246 S.E.2d 639,241 Ga. 518
• Parties: SIMMONS v. WOOTEN et al.
• Court: Georgia Supreme Court

Page 639

246 S.E.2d 639

241 Ga. 518

SIMMONS v. WOOTEN et al.

No. 33564.

Supreme Court of Georgia.

Submitted May 5, 1978.

Decided June 9, 1978.

Rehearing Denied July 6, 1978.

John N. Crudup, Gainesville, for appellant.

Kenneth R. Keene, Cleveland, Edward E. Strain, III, Cornelia, Stanley R. Lawson, Cleveland, for appellees.

MARSHALL, Justice.

Simmons filed this action against his grantor, two persons allegedly illegally in possession of portions of the realty he had purchased, and his attorney, who had represented him in connection with the purchase. The complaint as amended alleged substantially that the plaintiff was "unable to read"; that his grantor deliberately and intentionally misrepresented to him that she was conveying 38.8 acres of land in order to induce him to pay an additional $12,000 cash payment and assume her mortgage; that his attorney was to check the deed records and execute a certificate of title stating that he had checked the deed records, that the grantor had marketable title to 38.8 acres, and that she could convey good title to the plaintiff; that in fact the deed conveyed only 29.8 acres. The prayers for relief were for the deed to transfer 38.8 acres or, in the alternative, that he recover the $12,000 cash payment, that the grantor's mortgage assumed by the plaintiff be canceled, and that the plaintiff be restored to his original position; for actual and punitive damages and attorney fees; and for a permanent injunction against the two defendants' occupying "plaintiff's land."

All of the defendants filed motions for summary judgment. The trial judge granted summary judgment in favor of the grantor and the two contended trespassers, from which judgment the plaintiff appeals.

1. The grant of summary judgment in favor of the two alleged trespassers was correct. The showing on the motions for summary judgment was that these defendants both held valid record title, both before and after the conveyance in question, to two tracts of land surrounded on three sides by the land conveyed by the plaintiff's deed. Accordingly, it appears as a matter of law that the defendant grantor could not have conveyed their land to the plaintiff, and that an injunction would not lie to enjoin their occupancy of their own land.

2. The grant of summary judgment in favor of the defendant grantor was likewise correct.

Part of the contended basis of the alleged fraud was the alleged misrepresentation by the grantor that she was conveying more acreage than the deed in fact conveyed. However, " 'Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument.' Code § 38-501. 'All previous negotiations are merged in the subsequent written contract, and an additional obligation can not be grafted thereon by parol testimony.' (Cits.)" Dixie Belle Mills v. Specialty Mach. Co., 217 Ga. 104, 105, 120 S.E.2d 771, 773 (1961); F. C. Brooks & Sons v. Shell Oil Co., 226 Ga. 435, 437(1), 175 S.E.2d 557 (1970). See also Fields v. Davies, 235 Ga. 87(2), 218 S.E.2d 828; Harper v. Hesterlee, 152 Ga. 251(1), 109 S.E. 902 (1921).

The other element of the alleged fraud is contained in the general allegation merely that the plaintiff was "unable to read." "In all averments of fraud, or mistake, the circumstance constituting fraud or mistake shall be stated with particularity." Code Ann. § 81A-109(b) (Ga.L.1966, pp. 609, 620). Although this is a conclusory allegation, in that it does not specify Why the plaintiff was unable to read, such allegations are permissible under the CPA. Guthrie v. Monumental Properties, Inc., 141 Ga.App. 21(2), 232 S.E.2d 369 (1977) and cits. Construing the complaint in favor of the pleader, who is also the party opposing the motion for summary judgment, this allegation, which was neither amplified nor disproved by the showing on summary judgment, is susceptible to the meaning that the plaintiff was unable to read because of illiteracy or ignorance.

"(W)hile there is a wide difference between that class of cases in which one can read and those where one, from illiteracy or ignorance, is unable to read, the writing he is induced to sign, and has to rely upon the representations made by the draftsman, Lee v. Loveland, 43 Ga.App. 5(2b), 157 S.E. 707 to the extent that one who cannot read 'may, ordinarily, rely upon the representation of the other party as to what the instrument is, or as to what it contained and his mere failure to request the other party, or someone else, to read it to him will not generally be such negligence as will make the instrument binding upon him,' Grimsley v. Singletary, 133 Ga. 56, 58, 65 S.E. 92, 134 Am.St.Rep. 196; Pirkle v. Gurr, 218 Ga. 424, 128 S.E.2d 490; Mutual Savings Life Ins. Co. v. Hines, 96 Ga.App. 442, 100 S.E.2d 466, cp. Southern Fertilizer, etc., Co. v. Carter, 21 Ga.App. 282(1), 94...