36 S.E.2d 762 | Ga. | 1946
1. A court of equity will reform a contract of sale when, from mutual mistake or mistake common to both parties, an instrument does not express the true agreement of the parties.
2. Ordinarily the question of duplicity in pleading must be raised by special demurrer, but there is an exception to this rule. Where material averments are made in the alternative or disjunctive, and any one of them is insufficient, the entire pleading is to that extent bad in substance and subject to general attack by demurrer or motion.
The petition further alleged that "the execution of said deed was through a mutual mistake of both parties, arising out of the misunderstanding of the scrivener in that he simply copied the description in the old deed whereby petitioners obtained title to said land, and failed to except said sixteen-acre tract, or that the agent and employees of the defendant misrepresented the agreement and contract between the parties to the said Brinson and instructed him to draw said deed, following the description in the deed which was turned over to the defendant by petitioners for the purpose of checking title thereto;" that the defendant did not attempt to cut any timber on the sixteen-acre tract until all timber had been cut and removed from the remainder of the land, and then for the first time did the plaintiffs know that the defendant was claiming to own the timber on the sixteen-acre tract; that all negotiations for the sale of the timber were handled for all the plaintiffs by the plaintiff John H. Echols, and the other plaintiffs were not present at the time the plaintiffs, John H. Echols and Sarah Echols, signed the deed, but signed the deed on other occasions, not knowing that the deed did not represent the contract and agreement made between the parties. The prayers of the petition were for temporary and permanent injunctions, a reformation of the deed so as to exclude from its terms the sixteen-acre tract described in the petition, and for general relief.
The defendant demurred generally to the petition on the grounds that no cause of action at law or equity was set out; that no sufficient facts were alleged to support the prayer for reformation, the allegations of fraud being insufficient, and no facts being alleged to excuse the plaintiffs for their failure to read the deed, and no facts being alleged to show a mutual mistake.
The exception is to a judgment overruling the general demurrer.
1. "A court of equity will reform a contract of sale when, from mutual mistake or mistake common to both *287
parties, an instrument does not express the true agreement of the parties. Equity will also reform an instrument where there is ignorance or mistake on one side and fraud or inequitable conduct on the other." Gibson v. Alford,
The petition in the instant case fails to allege a cause of action for reformation of the deed on the ground of mistake on the part of the complaining parties and fraud on the part of the defendant. It is not alleged that the complaining parties were illiterate or unable to read; nor is it shown why the deed could not have been signed at a later date. Nor is it alleged that any artful, deceitful, or fraudulent means were employed to induce the complaining parties to sign the deed before reading it. By the exercise of the slightest diligence the plaintiffs could have apprised themselves of the contents of the deed. Their excuse that, believing the deed to contain the true agreement, and because of their old age, illness, infirmities, almost complete physical exhaustion, and their hurry to return to their home, they signed the deed without reading it, is insufficient to relieve them of their negligence in failing to read the deed. See, in this connection, Walton Guano Co. v. Copelan,
2. It is insisted by the plaintiffs that the petition is based on the ground of mutual mistake and sets forth a cause of *288 action on this ground. The petition alleges: "The execution of said deed was through a mutual mistake of both parties, arising out of the misunderstanding of the scrivener in that he simply copied the description in the old deed whereby petitioners obtained title to said land, and failed to except said sixteen-acre tract or that the agent and employees of the defendant misrepresented the agreement and contract between said parties to the said Brinson and instructed him to draw said deed, following the description in the deed which was turned over to the defendant by petitioners for the purpose of checking title thereto."
Ordinarily the question of duplicity in pleading must be raised by special demurrer, but there is an exception to this rule. Where material averments are made in the alternative or disjunctive, and any one of them is insufficient, the entire pleading is to that extent bad in substance and subject to general attack by demurrer or motion. Doyal v. Russell,
In the instant case, the allegation of mutual mistake arising by reason of an error in description made by the scrivener might, standing alone, be sufficient to allege, as against a general demurrer, a mutual mistake of the parties, for a petition for reformation will lie where by mistake of a scrivener and oversight of the parties a writing does not express the real contract between the *289
parties (Smith v. Smith,
Construing the petition most strongly against the pleader, and applying the foregoing rules, it thus appears that, under one of the two alleged alternatives in reference to the execution of the deed, the averments are insufficient to allege a cause of action. The court erred in not sustaining the general demurrer.
Judgment reversed. All the Justices concur.