Venable v. Burton

• Citation: 45 S.E. 29,118 Ga. 156
• Parties: VENABLE v. BURTON.
• Decision Date: 01 June 1903
• Court: Georgia Supreme Court

45 S.E. 29

118 Ga. 156

VENABLE v. BURTON.

Supreme Court of Georgia

June 1, 1903

Syllabus by the Court.

1. A petition in an action to recover real property described the land as "lot of land number four hundred and twenty-five (425)" in a given county, district, and section, and containing a specified number of acres. Plaintiff derived title from one to whom the defendant had conveyed the property to secure a debt. Both the deed from defendant to his creditor and the deed from the latter to plaintiff described the property in the manner set forth in the petition, and there was no other description either in the deeds or the petition. An amendment was offered and allowed setting up that, under the contract between the defendant and the grantee in the deed from him, a different number of lot was agreed to be conveyed, and that the defendant, with intent to cheat and defraud the grantee, had the scrivener to insert in the deed lot No. 425. The prayer of the amendment was that the deeds be reformed so as to embrace the number of lot agreed to be conveyed, and that this lot be sold, and plaintiff's debt be paid out of the proceeds, in preference to all other claims against the defendant. Held, that the amendment set forth a new and distinct cause of action, and that the court erred in overruling a demurrer thereto based on this ground.

Error from Superior Court, Forsyth County; Geo. F. Gober, Judge.

Action by A. S. Burton against R. R. Venable. Judgment for plaintiff. Defendant brings error. Reversed.

Simmons C.J., and Lamar, J., dissenting.

J. P Brooke and H. B. Moss, for plaintiff in error.

Bell & Wills, for defendant in error.

COBB J.

Burton brought an action against Venable for the recovery of real property. The only description of the property appearing in the petition was as follows: "Lot of land four hundred and twenty-five (425) in the Second District and First Section of said county, containing forty acres, more or less." The petition alleged that in 1873 the defendant Venable borrowed from one Abram Moor the sum of $100, and gave a deed to the land above described as security for the payment of the loan; that Moor subsequently died, and the plaintiff, at the request of Venable, paid to Moor's administrator the sum due by his intestate to the defendant, and took from the administrator a deed to the land above described, the plaintiff becoming thereby substituted for Abram Moor as creditor of the defendant, and subrogated to his rights. The petition concluded with a prayer for process. In each of the deeds referred to in the petition, the property is described merely as lot 425, containing 40 acres, more or less, the deed from the defendant to Moor locating the property in the Second District and First Section of Forsyth county, and the deed from the administrator to plaintiff locating it in the Second District of that county, without naming any section. The plaintiff offered an amendment setting up that, at the request of the defendant, plaintiff induced Moor to make the loan in 1873 to defendant, and that when the loan was made the defendant agreed to convey to Moor "lot of land 483 in the Second District, First Section, of said county, containing forty acres, more or less," but, with the intent to cheat and defraud Moor, had the scrivener to insert lot 425 in the deed, title to which the defendant did not have; that plaintiff did not know the number of the lot intended to be conveyed, but, having confidence in the defendant, and relying upon his statement as to the number, accepted the deed with th e wrong number in it. The prayers of the amendment were that the deeds be reformed by substituting lot 483 for lot 425, and that lot 483 be sold under a decree of the court, and the proceeds of the sale be applied, in preference to all other claims, to the payment of the amount which plaintiff paid to Moor's administrator. This amendment was demurred to on the ground, among others, that it set forth a new and distinct cause of action from that declared on in the original petition. The demurrer being overruled, the defendant excepted pendente lite. After the allowance of another amendment, a demurrer to which was also overruled, the case went to trial, and the jury returned a verdict finding that the deeds be reformed as prayed for, and that plaintiff recover the premises described in the amendment. A motion for a new trial filed by the defendant having been overruled, he sued out a bill of exceptions; assigning error upon the overruling of the demurrers to the amendments, and on the judgment refusing to grant him a new trial. Inasmuch as we have reached the conclusion that the court erred in overruling the demurrer to the amendment, a brief abstract of which is set out above, none of the other assignments of error in the bill of exceptions need be noticed, as it is not claimed that a recovery on the petition as it originally stood was warranted, and the verdict of the jury was based solely on evidence relied on to support the allegations of the amendment.

While under the operation of the recent procedure acts, great liberality is permitted in this state in the matter of amendments, the rule is still of force that "no amendment adding a new and distinct cause of action" shall be allowed. Civ. Code 1895, § 5099. This rule was also of force at common law. 1 Enc. P. & P. 547. Until the General Assembly sees fit to alter this rule of practice, the courts must adhere strictly to it, not-withstanding the legislative policy to allow great latitude as to amendments in other respects is apparent. "The office of an amendment is to render something before set out complete, when it is deficient; to explain where it is legally obscure; to make perfect from a legal standpoint that which as set out is imperfect. But it must always relate to the matter and cause of action as set out. It may amplify, enlarge, or extend the cause of action, but it cannot change it into another different and distinct cause." Summerour v. Felker, 102 Ga. 254, 259, 29 S.E. 448, 450. The foregoing quotation accurately and concisely states the rule which has been consistently adhered to by this court. Differences may and do arise as to its application in given cases, but no doubt can be entertained as to its existence. Many tests have been applied to determine whether a new cause of action is set forth. It has been said to be a fair test to inquire "if a recovery had upon the original complaint would be a bar to any recovery under the amended complaint, or if the same evidence would support both, or if the same measure of damages is applicable, or if both are subject to the same plea," and in some cases it has been said that the intention of the plaintiff when he instituted the original suit has an important bearing upon the question whether the amendment states a different cause of action. 1 Enc. P. & P. 556. The plaintiff's cause of action was the right to recover the property from the defendant, and the latter's wrongful withholding of possession from the plaintiff. McCandless v. Inland Acid Co., 115 Ga. 968, 974, 42 S.E. 449. An amendment which merely gives a more particular and certain description of the land described in the original petition is allowable. Wyman v. Kilgore, 47 Me. 184; Cuminge v. Rawson, 7 Mass. 440. And amendments are allowable to correct a misdescription of the land, where it is plain from the averments of the original petition that the plaintiff intended in the first instance to sue for and recover the land described in the amendment. In other words, a mere clerical mistake in describing the land, or a failure to give a full and complete description, may be cured by amendment, provided always that it is apparent from the two descriptions that in both instances the pleader had in mind the same tract of land. Heilbron v. Heinlen, 72 Cal. 376, 14 P. 24; Cooper v. Granberry, 33 Miss. 117; Leeds v. Lockwood, 84 Pa. 70; Gilman v. Cate, 56 N.H. 160; Box v. Lawrence, 14 Tex. 545; King v. Wright, 77 Ga. 581; Hogans v. Dixon, 105 Ga. 171, 31 S.E. 422. It has also been held that in a writ of entry on a mortgage the declaration may be so amended as to embrace a lot of land included in the mortgage, and accidentally omitted from the description of the mortgaged premises in the declaration. Noyes v. Richardson, 59 N.H. 490. It is manifest, however, that an amendment describing an entirely different tract of land from that described in the original petition is not allowable. The distinction between those cases where a mere mistake in description is corrected, leaving the identity of the land described in the petition with that described in the amendment unimpaired, and those where a recovery of an entirely different tract is sought, is pointed out in Wolf v. Wolf (Pa.) 28 A. 164, 166. See, also, Wyman v. Kilgore, 47 Me. 184. In Troxler v. Gibson, 2 N.C. 465, it was said (referring to cases cited by counsel): "These cases show that the demise may be enlarged, but none go so far as to show that the description of the thing demanded may be altered. If it could, a defendant might be at great expense in preparing to defend his title to one tract of land, and afterwards be forced to go through the same process as to another, and for a third, and so on ad infinitum. For if it is proper to alter the petitum in the first instance, why should it not be done afterwards, as often as the plaintiff pleases? If, after the institution of the action, the defendant sells that part...