140 Ga. 259 | Ga. | 1913
Mrs. S. E. Gabbett instituted an action to reform a deed, and for ptlrer equitable relief, against George B. Hinman. Pending the action Mrs. Gabbett died, and thereafter an amendment was allowed making her executor the party plaintiff. The bill of exceptions assigns error on a judgment of nonsuit.
In the City of Atlanta Currier street runs east and west. At right angles from the north Eipley street opens into it. Farther east Lowndes street opens into it, approaching at right angles from the south. On the east side of Eipley street and the north side of Currier street Mrs. Hinman owned a lot which fronted on both of these streets. Adjoining this lot on the east and extending along the north side of Currier street beyond the projection of Lowndes street was a tract of land belonging to Mrs. Gabbett. She sold a portion of this property to the defendant, the husband of Mrs. Hinman, and executed a deed describing the property as follows: “All that tract or parcel of land lying in land lot fifty (50) of the fourteenth (14th) district of originally Henry, now Fulton county, Georgia, commencing at a point on the northern side of Currier street, at the corner of Cora F. Hinman’s lot, one hundred and sixty-one (161) feet, more or less, east of Eipley st., at which point was the dividing line between Eipley and Gabbett property as per plat made by H. L. Currier April 23rd, 1862; from thence running easterly along the northern side of Currier street one hundred and seventy-five (175) feet, more or less, to a point directly opposite the western side of Lowndes street now opening into Currier street on the southern side thereof; thence running northerly in a line parallel with Eipley street one hundred (100) feet; thence in a westerly direction parallel with Currier street to a point on the dividing line between Eipley and Gabbett property as per plat aforesaid; thence following said dividing line in a southerly direction to beginning point.”
Two years later Mrs. Gabbett instituted an action to reform the deed, so that it would convey a frontage of 175 feet on Currier street commencing at a point 27 feet east of the beginning point described in the deed and extending east to the projection of Lowndes street, the effect of which would be to withdraw from the deed the southwest corner of the land granted, whereby Mrs.
When the case was brought to this court on exception to a judgment dismissing the petition on general demurrer, the deed was construed as conveying all the land between the projection of Lowndes street and the true line of division between Mrs. Hinman. and Mrs. Gabbett; and on the allegations of mistake on the one hand and fraud on the other, it was held that a case was alleged for reformation of the deed, and the judgment was reversed. Gabbett v. Hinman, 137 Ga. 143 (72 S. E. 924). On the subsequent trial the agent of plaintiff, who took the measurement, a surveyor, and
While equity will, in a proper case, so reform a deed to land that it will conform to the contract of sale, it will neither make a contract for the parties nor so reform a deed that it would defeat the contract. The evidence did not make a case for reforming the deed; and as that instrument is conclusive upon the right of plaintiff to recover the land, it did not authorize a verdict for the land. The deed was a conveyance by the tract. The front line, which formed the bone of contention, was described as beginning at the east line of Mrs. Hinman’s lot, which was recited to be a given distance from Eipley street, “more or less,” and running thence 175 feet, “more or less,” to the projection of Lowndes street. The defendant did not know accurately the location of the east line of Mrs.
Judgment affirmed.