137 Ga. 143 | Ga. | 1911
Sarah E. Gabbett filed her equitable petition against George B. Hinman, seeking to obtain the reformation of a deed, or, if this were not granted, to recover a money verdict. The court dismissed the petition on general demurrer, and the plaintiff excepted.
Equity will not generally reforra a written contract on the ground of mistake, unless it is shown to be the mistake of both parties;'but it may'rescind and cancel upon the ground of mistake of fact material to the contract, though the mistake be that of one party only. Civil Code (1910), § 4579. In Wyche v. Greene, 26 Ga. 415 (decided in 1858), it was held that what is a mistake on one side, and a fraud on the other, is as much the subject of correction as if it were a mistake on both sides. This decision was rendered before the adoption of the first code in this State. But it has been held that the code did not alter this rule. Shelton & Co. v. Ellis, 70 Ga. 297; Venable v. Burton, 129 Ga. 537 (59 S. E. 253); Central of Ga. Ry. Co. v. Gortatowsky, 123 Ga. 366 (51 S. E. 469); Bridwell v. Brown, 48 Ga. 179; Civil Code (1910), § 4114, par. 2. The mistake of one party only to a contract, without mistake or fraud of the other party in reference to the same matter, will not authorize reformation of a written contract. To reform the contract under such circumstances so as to correct the mere error of one party, would be, in effect, to make a contract which the parties did not make for themselves. If land is sold by the entire tract or lot, and the quantity is specified as “more or less,” this qualification will cover any deficiency not so gross as to justify the suspicion of wilful deception or mistake amounting to fraud. Wylly v. Gazan, 69 Ga. 506; Kendall v. Wells, 126 Ga. 343 (55 S. E. 41).
If these allegations are true, the case falls within the ruling in the decisions above cited. There were expressions in the petition to the effect that the plaintiff and her selling agent thought the fence was on the Hinman line, and indicating an intent to sell her entire lot, but a mistake as to’ its frontage, taken advantage of by the defendant. If a deed describes the land conveyed as bounded on one side by the land of a third person, the true boundary line between the land conveyed and the land of such third person must be taken as the boundary line of the land so conveyed, and not a conventional line agreed upon in parol by the parties at the time the deed was executed, if there be a variance between such two lines. The deed will control, unless it can be reformed. Hall v. Davis, 122 Ga. 252 (50 S. E. 106). On the trial the plaintiff may or may not be able to sustain her allegations above set out, but they must be treated as true on general demurrei’.
Judgment reversed.