180 Ga. 349 | Ga. | 1935
(After stating the facts.)
The motion for new trial contains only the general grounds; and this court is of the opinion that the evidence authorized the verdict in favor of.the plaintiff.
The grounds of demurrer to amendment of the petition were: (1) Because the amendment seeks to reform a deed in the same action wherein the deed sought to be reformed is relied on as a basis of title to the lands in question; the original suit, now sought to be amended, having been brought on the theory that the plaintiff was the owner of the lands by virtue of a sale under power contained in the deed to secure debt relied on the original action. (2) Because there is no authority for the reformation of a contract, or deed, in the same action wherein it is sought to give effect to the terms of the proffered contract'or deed, as in this case.
In Burke v. Anderson, 40 Ga. 535, it was held: "Where there is in fact a sale or mortgage of property, by one man to another, and, by a mistake in the execution of the conveyance, the true intention or contract of the parties is not expressed, it is a common and very ancient jurisdiction of courts of equity to correct the mistake, to cause the instrument to speak the facts, and to put the parties, as to each other, in the true position in which they thought they had placed themselves. Nor is this relief confined to the original parties, but will be extended, both for and against their privies, in estate and in law: 1 Ves. 314; 8 Wheat, 211; Hayne’s Outlines of Equity, 132 and 133; 1 Ves. 514; 3 Ark. 188; Rev. Code, § 3050.” In Phillips v. Roquemore, 96 Ga. 719 (23 S. E. 855), it was held: "Equitj^ will correct a mistake in a mortgage, whereby property intended to be included therein was inadvertently omitted, even after the mortgage has been foreclosed and the property described in it has been levied upon and sold under the mortgage fi. fa.; and after such correction, the lien of the mortgage on the omitted property will be superior in dignity to that of a judgment obtained after the mortgage was originally executed and before its reformation. This is so although the judgment was founded upon a debt in the contracting of which by the debtor credit was extended to him upon the faith of his apparent unincumbered ownership of the omitted property; there being, under section 3119 of the Code, no protection in such cases to other than bona fide purchasers for value without notice.” See also DeVane v. Fambrough, 133 Ga. 471 (66 S. E. 245); Long v. Gilbert, 133 Ga. 691 (66 S. E. 894). We have cited several authorities along the same line, because they completely cover one of the main questions in this case.
We are further of the opinion that the court did not err in holding .that the plaintiff, having a right to reformation of the security deed, could, under proper prayers, procure this relief by amendment to the petition. See Code of 1910, §§ 5681, 5682. In McCandless v. Inland Acid Co., 115 Ga. 968 (2) (42 S. E. 449), it was held: "In an action brought by a plaintiff to recover possession of land the petition alleged that the plaintiff was the owner of the land under written evidence of title. An amendment was offered set
Judgment affirmed.