170 Ga. 40 | Ga. | 1930
Harper brought an equitable petition in the superior court of DeKalb County against M. A. Bailey and Walter Bailey of Rockdale County, and Mrs. Gleaton, alleged-to be a resident of DeKalb County. In this petition Harper alleged that he had purchased from M. A. Bailey a tract of land in Rockdale County, very definitely described in the petition, and at the time of the purchase he had paid part of the purchase-price and that Bailey wrote and gave him the following receipt: “Received of E. G. Harper $10 for part payment on the Anglin place. M. A. Bailey.” He alleged that the real date was December 5, 1987, the consideration $350 to be paid on or by December 20, 1927, subject to examination and approval of title; that the Anglin place was a well-known place in Rockdale County, containing 70 acres of land with the certain definite boundaries which were alleged; that M. A. Bailey put Walter Bailey in possession, and he claimed to have bought it; that M. A. Bailey, on December 10, sold to Mrs. Gleaton and made a'deed to her; and that both she and Walter Bailey took with full notice and knowledge of Harper’s purchase and rights. He prayed, if the contract needed reforming, which he did not believe it did, that it be reformed to speak the entire contract; and by amendment he -alleged that the mistake or omission in the receipt was Bailey’s, that there was no intention on the part of Bailey to perpetrate a fraud, but that the mistake was due to a mistaken idea on the part of both of them that the receipt was sufficient, and this mistake was mutual, because the petitioner did not -then know that the terms as to the amount and payment of the purchase-price and fuller details as to the date of the contract and the description of the land should be given. M. A. Bailey demurred upon the grounds: (1) That the petition does not show that by the use of ordinary diligence the plaintiff could not have acquainted himself with the existence of any mistake in the receipt at the time of its execution. (2) That the petition shows that the plaintiff was guilty of laches in not ascertaining the contents of said receipt or in not asking defendant to change the same. (3) Specialty, because it is not alleged how or in what manner the mistake occurred, or what caused or brought about the alleged
In the state of the record the first question to be determined is whether the court erred in sustaining the demurrer and the motion to dismiss; and the decision upon this question depends upon whether the plaintiff’s petition as amended sufficiently set forth a cause of action for reformation of the receipt to withstand the attacks made by the demurrer. The demurrer and the motion to dismiss, which was sustained on April 6, 1929, rested upon the following grounds: “Now comes C. R. Vaughn, attorney for defendants M. A. Bailey and Mrs. T. J. Gleaton (having become attorney for Mrs. Gleaton at the time she heretofore filed traverse to the return of sheriff in said case). And now defendants aforesaid move the court to amend his order sustaining demurrer to said petition filed by M. A. Bailey under date of Dec. 3, 1928, so that said order of court shall apply to entire petition in said case, and that said petition be dismissed as to both defendants M. A. Bailey and Mrs. T. J. Gleaton, on account of fact that said plaintiff can not proceed against Mrs. Gleaton without proceeding against M. A. Bailey; and M. A. Bailey not being in court, this petition
Considering the various assignments of error presented by the bill of exceptions in their dhronological order, as we think we should, we shall first deal with the exception which assigns error upon the judgment of the court of December 3, 1928, in sustaining the demurrer filed by the defendant M. A. Bailey and which dismissed him from the action. To this judgment exceptions pendente lite were duly filed on December 26, 1928, and error is duly assigned upon this ruling in the bill of exceptions. The original petition was filed December 27, 1927. On December 31, 1927, it was served upon M. A. Bailey and Walter Bailey, alleged in the petition to be residents of Bockdale County, by service of a second original, the entry of service being made by S. I. Cowan, sheriff of that county. The entry of service upon the original, made on January 13, 1928, by Jake Hall, deputy sheriff, is as follows: “Georgia, DeKalb County. I have this day served the defendant Mrs. T. J. Gleaton by leaving a copy of the within writ and process at his most notorious place of abode in this county. This Jan. 13, 1928. Jake Hall, Deputy Sheriff.” At the February term, 1928, M. A. Bailey, protesting the jurisdiction of the court, filed an answer and demurrer to the petition on February 29, 1928. In response to this demurrer the plaintiff by leave of the court amended his petition. In the amendment he alleged in substance, stating as the reason why the contract should be reformed, that he did not know.that the date, consideration, and other particulars necessary to be definitely stated were essential at the time that he accepted the receipt; and further, that Bailey, who drew the contract, was ignorant of what it ought to contain, alleging that plaintiff believed that the mistake in drafting the contract as made by Bailey was solely on -account of this ignorance, and not done with any intent to draft a defective agreement, “and that said Bailey never knew there was a possibility that he might defeat the plaintiff because of the omission in the contract as written.” This amendment was pending at the time that the court had the hearing upon the demurrer. The demurrer of Baileji- was based upon the following grounds: “(1) Petition does not show that by the use of ordinary diligence the plaintiff could not have acquainted himself with the existence of
The first and second grounds of the demurrer, setting up that the plaintiff by the use of ordinary diligence could have acquainted himself with the existence of any mistake at the time of the execution of the receipt, was also met by the amendment, for if both parties were of the opinion that the receipt as drawn was sufficient and neither of them knew that it was not sufficient, the plaintiff could not have acquainted himself with the existence of the mistake at the time of the execution of the receipt. While the law does not impute ignorance of the law to any one, and all are presumed to know the law, there are many cases holding that there may be a mistake of law as to the effect of the language used or omitted in the execution of writings, which arrthorizes reformation. The second ground of demurrer, based upon the ground that the plaintiff was guilty of laches in not ascertaining the contents of said receipt or asking the defendant to change the same, is without merit. This court has more than once held that laches is a question of fact for determination by a jury. Grant v. Haymes, 164 Ga. 371 (4a) (138 S. E. 892). We are of the. opinion that the court erred in sustaining the demurrer and dismissing M. A. Bailey from the case. The error was so vital as to preclude the plaintiff from any of the relief sought by him. While at this stage of the proceedings the court still had jurisdiction, because the entry of the deputy sheriff of service upon Mrs. Gleaton at her most notorious place of abode in DeKalb County had not been traversed, the plaintiff’s rights depended primarily upon establishing a case against M. A. Bailey. Thereafter it would devolve upon the plaintiff to prove
Judgment reversed.