Rose v. West

50 Ga. 474 | Ga. | 1873

McCay, Judge.

We recognize the general rule laid down by this Court in Hargroves vs. Jones, 27 Georgia, 233, that a demurrer to a bill, on the ground that the complainant has an adequate remedy at law, cannot be put in at the trial term. But that is a mere rule of practice, and cannot apply to a case where the plaintiff had, at the appearance term, equity in his bill, and which he had abandoned before and at the trial term. The only reason presented in (he original bill to justify equitable interference was the allegation of the valuable rents, the insolvency of the defendant, and the prayer for the impounding of the rents to await the final hearing. At the first term that petition was a pending petition; there might be, under the charges of the bill, a necessity for the action of the Court, and at that time there was no remedy at law for what the complainant desired. But for some reason, the first term and the intervening vacation was allowed to pass and no motion made, or proceeding had, to treat as a serious thing the only charges in the bill that justified the interference of chancery in the dispute between the parties. At the trial term, or at any rate when the case was called, the petition for a receiver was absurd. Before the receiver could take possession, the necessity for his appointment would cease; certainly before any rents could accrue, this would be so. We think, therefore, under the peculiar facts of this case, the motion to dismiss was not too late. But, as the bill might have been, and still may be, amended so as to charge a mistake in the deed to Henderson and pray a reformation, we do not think the decision of this point covers the case.

On the issue on trial Mrs. Rose was a competent witness, notwithstanding the death of Henderson. The debt for mesne profits, if it existed, was a debt from her to West, implied from her possession of West’s land ; or if it be considered damages for trespass the wrong is to West. She could not testify as to facts transpiring between her and Henderson at the making of the deed, since she is a party to the deed, and Henderson, West’s warrantor, is dead. But she may be a witness in the issue as it arises between her and West. She may explain, if she can, the acts of admission which are proven against her, and she may testify to any transactions since the date of the deed to West, bearing upon the rights which West may have, which Henderson does not have.

We do not think the real rights of the parties have been fairly heard and passed upon. This verdict is only sustainable as the pleadings stand on the idea that the deed to Henderson covers the land in dispute, by the words in whiah it describes the land it conveys. If the jury have treated the deed to Henderson as a mistake, if they have found this verdict on the ground that though the Henderson deed does not, by its words, convey this land, yet that such was the intent of the parties, the verdict is wrong. We think the charge of the Court was calculated to authorize the jury to do this, and we feel, in reading over the testimony, that they must have done this.

The distinction taken in the argument between a misnomer of the land, calling it by a wrong number and a mistake, though plausible, is not sound, at least it is not probable the jury were so nice in their discrimination.

The case ought to be tried on proper allegations of a mistake in the deed. It is clear to us from the testimony, that the deed to Henderson does not, by its words, convey this land, and we are strongly inclined to the opinion that it was the intent of the parties to it that it should do so. If it was fraudulent it cannot be reformed, except in favor of one who has been misled by Mrs. Nose’s own acts.

"We express no opinion as to how West stands in this respect. There may be something in the fact that Henderson had possession of this particular land under the deed, by Mrs. Nose’s consent, and this might be a strong element of equity in West’s favor. At any rate, we think there ought to be a new trial, when the real dispute shall be fairly heard, not on matters of pleading, but on the real, legal and equitable rights of the parties.

Judgment reversed.