127 Ga. 1 | Ga. | 1906
David Caudell instituted suit against his son, J. D. Caudell, and Marion Whitfield and John Garrison. It was alleged, •among other things, that David Caudell, being of.advanced years, desired to make provision for the distribution of his property among his several children after his death; that he had several hundred
On the trial of the case, the plaintiff introduced the deed herein-before described, and testimony substantially to the effect as charged in the declaration, except upon the question of mistake. Upon that question the plaintiff himself omitted to testify that the alleged condition upon which he undertook to convey the property to his son J. D. Caudell had by mistake been omitted from the deed. The defendant J. D. Caudell was also sworn for the plaintiff, and he likewise omitted to testify that the condition just referred to was omitted from the deed by mistake. The nearest approach which this witness made to testifying that the condition was omitted from the deed by mistake is found in the following words: “When my father made the deed to me, he said he would deed me and my two brothers the land. We were to pay the estate $1,000 in proportion to what we received, and I had to pay $400. The reason that was not put in the deed, he forgot it, he said, or I reckon he didn’t think it was necessary to do it; that we would pay it. That was the agreement between us.” James H. Caudell, a brother of the plaintiff, testified: “I think I wrote the deed for my brother David Caudell to his sons, and my recollection is, while writing the deed and a judge (J. P.) was reading it from the form book, — we got a right smart piece along in the deed, and he said something about, ‘What about your daughters?’ ‘Well,’ he said, ‘the boys áre going to pay their part of the $1,000’ — I think, my recollection is, — ‘in accordance with the number of acres they get of their pro rata share.’ And we said something to him about may be it ought to be in the deed, and he said, ‘No, the boys will take the land and ]flly the girls the money.’ That is the reason why it was not put in the deed.” There was other evidence introduced tending to sustain the propo
Judgment is reversed, with direction that the nonsuit stand as to the defendants Whitfield and Garrison, and that the cause be reinstated as to J. D. Caudell, and that J. D. Caudell pay the costs of this writ of error.
Judgment reversed, with direction.