187 Ga. 624 | Ga. | 1939
Lead Opinion
This was an equitable proceeding for partition, injunction, and receiver, by the holder of a security deed and a sheriff’s deed after foreclosure, covering an undivided half interest in realty, against the grantor of the security deed and a subsequent grantee holding a junior security deed, who together owned
1. Equity will not reform a written contract on account of a mistake, unless the mistake was one of both parties. Some particular mutual mistake and how it occurred must be alleged and plainly shown. Code, §§ 37-207, 37-208, 37-202; Helton v. Shell nut, 186 Ga. 185 (197 S. E. 287), and cit.; Crim v. Alston, 169 Ga. 852 (151 S. E. 807). Accordingly, under the general rule that a party’s own testimony is to be construed most strongly against him, the defendant grantor was not entitled to reformation.
3. Nor was the grantee in the second security deed entitled to reformation in the first deed, even though it might be held that as to him the evidence of his co-defendant could be taken to indicate that the first security deed did contain an incorrect description due to a mutual mistake of the parties thereto, since the second grantee, being a stranger to the prior security deed from his grantor to another person, is not entitled to reformation of the first deed. Garlington v. Blount, 146 Ga. 527 (91 S. E. 553). Especially is this true where, as here, the junior deed expressly recites the existence
3. In accordance with the foregoing rulings, the court did not err in directing the verdict against both of the defendants, and in refusing a new trial.
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
While counsel for the plaintiffs in error do not seem to question the correctness of the decision in this case under the rulings announced in the first division of the syllabus and the last paragraph of the second division, they do attack the rule stated in the first paragraph of the second division, and in their motion for rehearing assail as unsound the ruling by this court in Garlington v. Blount, supra, on which that portion of the present decision was based. The Garlington case held as follows: “Where one executes two security deeds conveying the same property to different parties, the grantee in the second deed can not maintain a suit in equity to reform the first deed, although the description may be incorrect and he due to the mutual mistake of the parties. This is true because the second grantee has no privity in the estate conveyed in the first deed. Equity will correct mutual mistakes between the 'original parties or their privies in law, in fact, or in estate/ Civil Code (1910), § 4573.. [Code, 1933, § 37-213.] It can not be contended that the plaintiff is privy in law or in fact. He is not a privy in estate, because 'a privy in estate is a successor to the same estate, not to a different estate in the same property/ The grantee in the second deed is a stranger to the contract between the parties to the first deed, holds adversely thereto, and hence is not bound by its terms. To entitle one to maintain such an action as the present, he must he a party, or a successor to the party, under the same contract. Pool v. Morris, 29 Ga. 374, 382 [74 Am. D. 68].” In their motion counsel submit that the rule as thus stated in the Ganiington case is manifestly erroneous. Their position is
The text in 50 C. J. 408, has this to say: “To constitute one person a privy in estate to another, such other, it has been held, must be a predecessor in respect of the property in question, from whom the privy derives his right or title. Thus, one who acquires real estate pursuant to a tax sale is not in privity with the former owner. A privy in estate is a successor to the same estate, not to a different estate in the same property.” Citing a number of cases, including the Garlingion case. Definitions respecting the different kinds of privity are somewhat difficult to formulate. The authority just quoted refers to the fact that it has been said that there is no definition of the term that can be applied to all cases, but that in its broadest sense privity “denotes mutual or successive relationship to the same right of property.” 50 C. J. 404, and cit.; 53 C. J. 976, § 116, and cit. If this be a correct statement, and we think it is, it would be well, as relates to this case, to ask at the outset what effect, if any, does the fact that privity existed between the original owner and his two security-deed holders have in determining the right to reformation as respects the two vendees, holding the same property under the same grantor, but under altogether different rights? Can it be true, as contended, in order for the second vendee to limit and reform the contract of the first vendee, to which he, the second vendee, was neither party nor privy, that all he has to do is to show that he was a party to another and different contract with the same grantor, setting up another and different right to the same property ? This would violate the terms