Sweat v. Hendley

| Ga. | Jun 15, 1905

Lumpkin, J.

(After stating the foregoing facts.) 1. In ejectment or complaint for land mere inaccuracies of description may be corrected by amendment, but the declaration can not be so amended as to sue for another tract or parcel of land, not included in the original suit. This would be to add a new and distinct cause of action. But the present action is not ejectment or complaint for land. It is an equitable proceeding to compel specific performance of a contract to convey land. It would not be competent to add by amendment another distinct contract to convey other land, and to seek its enforcement in addition to or instead of the contract originally relied on. Milburn v. Davis, 92 Ga. 362. But if the original contract was misdescribed or erroneously set out, it could be corrected by amendment. The action would still be predicated on the same contract. It would still be an effort to compel specific performance of that contract. Mere correction of a misdescription of the terms of a contract or of the land covered by it would not be adding a new and distinct cause of action. The amendment was, therefore, properly allowed. Civil Code, §§ 5097, 5098; City of Columbus v. Anglin, 120 Ga. 785; McDougald v. Williford, 14 Ga. 665.

2, 3. The presiding judge charged, in effect, that the wife claimed one half of the lot for services rendered the defendant, or for her interest in other land, and that if this were true, and she went into possession under a promise of the defendant to make her a deed, and by her labor and expenditure of money had made valuable improvements, the jury should find in her favor as to that part of the property; also ihat the husband contended that he was entitled to have a deed from the defendant to the other half of the lot, and that if the contentions of this plaintiff on the subject were correct, the jury should find for him as to that half. From the verdict rendered it would seem that these charges exercised a strong influence upon the minds of the jury, since they found for the wife as to one half of the Iod, and for the defendant as to the other half. All parties to the litigation are dissatisfied with the charge, on the ground that it did not correctly state the contentions of the parties, and with the verdict of the jury. All contend that the verdict should have been in favor of the plaintiffs jointly, or in favor of the defendant. We think that this combined attack upon the charge and the verdict must prevail. The plaintiffs sought to obtain specific performance oE an alleged contract made between the defendant and them jointly. They desired to stand or fall on the right, asserted in their pleadings, to have the conveyance made to them jointly. The defendant did not set up any ground for separating the parties plaintiff, but denied flatly the com 'tract on which their claim was predicated. His mere expression of willingness to convey a life-estate to his sister, not acceded to by the plaintiffs, did not serve as a basis for a verdict in her favor separately, finding that a conveyance in fee simple should be made to her as to one half of the land. There was nothing in the. pleadings authorizing the charge stated above, or the verdict of the jury. See, on this subject, Lake v. Hardee, 57 Ga. 460 (4); Rhodes v. Hart, 51 Ga. 320 (3); 2 Story’s Eq. Jur. (13th ed.) 934, § 770 (a).

Judgment reversed. All the Justices concur, except Simmons, C. J., absent.