*1 Harry Etheridge Harland, Jr., R. Harland, & James Hide, L. error. plaintiff Cashin, Jr.,
Elijah Brown, Clayton, A. M. contra. Chas. et al. v. BYCK.
21470. LAWTON February Argued January 12, 1962 8, 1962 —Decided Rehearing denied March 8, 1962.
Ogden Doremus, plaintiff for in error.
Sylvan A. contra. Garfunkel, specific perform seeking Justice. “The vendor
Mobley, ance show1an his ability comply substantially shall with part contract every and as to all the but a want property; good title or other not be a answer inability as shall performance, accept to the who*is seeking willing vendee title part, receiving compensation to the defects other. If the for small, trifling, comparatively the vendor’s shall be at instance, compensation decree equity granting shall his (Italics ours.) such defects.” Code 37-806. set option, as out in the statement paragraph 3 of performance cannot are excused if
facts, give required merchantable title property option money. allege peti- return They in Count I of their purported compliance paragraph tion that their made contract notwithstanding provisions void quoted section. above *4 agree. give not able to deed
We cannot
While
are
a
merchantable title
the
in the
conveying
to all of
land described
option,
part
are
merchantable title
of
convey
able to
to a
part
the
therefore
not lack title to that
property and
do
accept.
pre
Byck willing
clear that Code
is
is
37-806
§
just
Phinizy
situation.
supposes
Guernsey,
See
such a
(36
Cropper
Georgia
R. C.
Co. v. Middle
796);
Ga. 346
SE
Amuse
(91
Co.,
605);
SE2d
Chatham
Broadcasting
Accordingly, the trial court did err the petition. demurrer to this count of “More Byck’s use of the term alleges that III Count justifies option, descriptive portion in drafting less” apportion and that no any deficiency in amount land the price. ment be made should his support plaintiff authority by cited only deficiency which deals with allegations 29-201, is bearing the case has no on quantity lands. This Code section alleged, and from from facts sub clear judice, as is rather defect in petition, title, a attached to exhibits deficiency quantity, than a involved. Washington Mfg. Co. v. Wickersham, 201
This court in (40 206), present “In case there is said 635, 640 SE2d shortage quantity. that there complaint any Instead convey that the unable to defendant is asserts plaintiff’s purchase, two of land within tracts included a case being account the title in another. In such thereto applicable principle Code, contained defect purchaser ‘If loses land wit: entire title, contract, he either rescission of the may claim the relative value according price reduction of ” so lost.’ land the tract was described instant case involved allegations clear it is from the boundaries and those within boundaries owned acres several
681 defect to a amounts This plaintiffs. someone other than defi- rather than a 29-202 contemplated title by Code as § this by 29-201. Code contemplated quantity ciency as § 118), (35 SE Elder, 109 713 Foute connection, see also land, tract of titles to a “A bond for that, in which held was a measuring being boundaries and certain as described within obligor depth binds feet and in in width certain number he has described; and if tract so title entire to make he although the bond, it, breach portion title this is a to a the bond at the time portion title did not have executed.” offered plaintiffs, by option, instant
In the case e., i. boundaries, defined certain well sell a tract of land within irregular subdivision, being said lot a “lot said known C-3 of as aas more which lot or containing acres, less, in shape, 18.15 a feet by north road 20 wide whole bounded on by the east on Line Railroad; of the Coast property Atlantic Street by the south President subdivision; Lot B-2 said to the belonging Atlantic Extension, by property on West C-3 of Lot less, however, part Line all Coast Railroad, first conveyed parties by has heretofore been which S. A. Inc. part V., in title to W. predecessors or their Kaminsky.” belongs now to Julius be- tract deliver described plaintiffs
The unable it. defect This a have to a cause do if The be in title. situation would different to the the tract boundaries described able described convey entire they had title to the appeared that, though and it later option. tract, the less land than described tract contained the former covered latter situation is not. judge error for the trial sustain Accordingly, it the petition. III to Count demurrer mis reformation, relation to means a mistake, “Mutual or mistake participated by, parties, both by, take shared reciprocal parties, both parties; both to both common to misconception respect under same must have labored at of written instrument, intending conditions the terms and say thing the instrument one the execution of time of and by another, mistake as expressing so the instrument written express does contract or intent either of parties.” 76 C. J. Reformation 28. 364, 365, Instruments, S. “A mistake is parties participate mutual one in which both each laboring misconception.” 373, under same C. J. S. *6 Equity, 45.§ court (151 This 807) Crim v. re Alston, 169 852 SE Ga. “ the principle
stated 'before that a written equity will reform it instrument, must appear agreement there was valid sufficiently expressing parties, the intent the the real and that written express instrument this intent, failed to and failure Cyc. was due to mutual mistake.’ 34 915.”
“A bill of complaint in a suit to reform a written instrument
must
state
clearly
distinctly
agree
and
what
was
contract or
ment between the
parties, and show what
of the contract
was omitted
it
portion
when
reduced
or
writing,
what
expressed
contract
it
as was
in the
em
writing
not
the original
braced in
contract.
'If mistake
must
is relied
it
on,
be distinctly charged and
precision,
particular
stated with
mistake
it
being shown and how occurred.
words,
other
pleader should state
why
hap
terms of the actual contract
pened
out,
be left
agreed
how terms
on
be
came to
inserted.’
L.
23 R. C.
361.” Frank & Co. v. Nathan,
Ga.
159
(125
202,
(143
208
SE
Martin v.
66);
Turner, 166
SE
Ga. 293
239); Brooks v.
Co.,
Northwestern Mutual
Ins.
522
193
Life
(18
860);
(50
326).
SE2d
Wheeler v. Poole,
Plaintiffs instant case do not mutual mistake but allege instead allege two unilateral mistakes. They “that petitioners defendant did know did not have title to portion petitioners Tract and that C-3 that de did know bargained fendant other land than that described in 'Exhibit agency A’ petitioners as to the communicated [the contract] agent T. Cooper.” allegations said R. negate These mutual mistake, as show that there was no agreement, actual left out terms which were of the written It instrument. clear the allegations peti and exhibits attached to the represented tion that the writing the contract as the defendant and, toit be Quiggle intended as stated in v. Vining, 125 Ga. (54 writing 99 SE 98, “If 74), represented as contract reformed it be could not course understood it, defendant conception it.” plaintiff’s accordance sustain judge the trial not error for it was Accordingly, of the petition. demurrer to IV Count seeks and petition grounded on fraud Count ofV contract. rescission of appears allegations case
“From
representations
made
rely upon
plaintiffs
chose
the terms
leases
and
respecting
terms
defendants
alleged
leased.
property
rental
payment of
frau
were false and
representations
that these
general terms
act
injured by relying and
dulent,
that the
plaintiffs
facts
in that the
is defective
ing upon
the same.
charge
ruled
fraud, as
alleged are insufficient
actual
(66
Mangham v.
934),
Roper,
Emlen v.
Ga. 726
SE
not disclose
(127
that it does
408),
Comparing
Brawner,
those in
case
Arthur
consideration
shows,
its
the instant case the
supra, we
find
opportunity
op-
an
face that
to examine the
had
signed
addition,
without
so.
doing
apparently
but
tion,
allegations
any
there
condi-
emergency
can be
no
found
authorizing
upon
alleged
the plaintiffs
rely
fraudulent
tion
by Byck.
County,
representations
Colquitt
See Morrison v.
(167
Browning v.
321);
Richardson,
Ga.
Plaintiffs’ sentences which devotes two and law to the argument their fifth con- count, indicates a lack ground. fidence We think that their lack of confidence is placed. well
It was not de- error trial court for to sustain a murrer Y the petition. to Count
Judgment except All concur, Duckworth, the Justices affirmed. C. J., Candler, and who(cid:127) J., dissent. dissenting. Proper Justice, Chief construction
Duckworth, of statutes contacts an requires acceptance and of all unam- biguous provisions provision and forbids any nullification of either. my majority opinion is firm conviction that offends this universal principle by effect giving full ignores optionee, beneficial to the § then significant unambiguous provision option and the event the optionors are, because of want title, unable convey “the lands described option consideration of this parties shall be returned.” extensions Here familiar with Code respective 37-806 fix deliberately chose to their § rights in case of want by of title their contact rather than allow them be fixed under Code 37-806. Parties have right waive rights provided public their under law, injured thereby. Code 102-106.
The unfairness and unsoundness of majority ruling by assuming parties demonstrated have fully executed provision contract for a refund consideration, party compel either legally could such performance, ren- thus dering pactum; nudum yet is being enforced equity. a court of contact contains agreed basis parties all settlement the event of want title, it is *8 a waiver of Code 37-806 and states the optionors’ limit of liability. parties the Had failed to contract as respec- to their rights optionors’ tive event of not having title, those rights have would been fixed and they charged knowledge with that law. of Or, they if to had wished rights that any retain law under did, and also contract as they written the they could have into option contract the settle to the rather the under than law contract. But with the total fixing in the contract controls these any facts absence provision ignored the contract have rights, majority the their and protected a refund provision The for for settlement. such money back, in his and optionee getting parties both —the neither limiting refund. liability optionors in their that if title to all say good parties nor law fair to the refund just lacking a of was lands and described agree- something made. adds should be Such construction portion title to smallest want of Obviously ment. agreement thereto, title and the want of lands is a described parties desired that event. provides Had for refund optionors had event only that have contracted they could be a could lands refund any part described no get result do and that but so made, did Courts have their contract. court’s decision nullifies which right change a contract. to thus highest justice purest, complete,
The most be rights these allow their give parties is to court this can rights agreed each those other they freely what exactly expressed their contract. To them deny be should I dissent. justice. foregoing reasons rights to defeat For Mr. state Candler concurs I Justice am authorized dissent. 21471. YOUNG. SAMS enjoin suit acts seeking to Justice. a This Quillian, tres- alleged plaintiff continuing were a defendant, government way over against right easement for a pass his alleged that Govern- the United land. States plaintiff granted the ment, $50, consideration of for a and use road over L. R. an easement to build Sams lands. The further across certain described defined route plaintiff were: averments possession of, an easement exclusive of, owner grade employed party third that he right way; had $1,500; at the cost land road on and over said and build a plaintiff’s knowledge had, without the the defendant