164 Ga. 155 | Ga. | 1927
Lead Opinion
On October 7, 1925, Nottingham filed against Whittle his petition for reformation of a bond for title and a warranty deed made by him to Whittle, and for the recovery of a judgment for the balance of purchase-money due by Whittle to him on the purchase of an undivided half interest in a tract of land. The petition made this case: On May 1, 1920, petitioner and defendant entered into a written contract under seal, by which the former agreed to sell to the latter an undivided half interest in a portion of a larger tract of land owned by petitioner, at the price of $10 per acre. The purchase-price was to bear eight per cent, interest from the date of said contract until it was paid. The parties were to agree upon the boundaries of the tract of ' land so sold, and, after this was done, the number of acres contained in the tract was to be ascertained by a survey to be made by the county surveyor. The parties afterwards agreed upon the boundaries of the tract so sold, and employed the county surveyor to survey the same and ascertain the number of acres embraced within these boundaries. The county surveyor made the survey and reported to the parties that the acreage within these boundaries was 660 acres. Thereupon Whittle paid Nottingham in property and money $3000 upon the purchase-price of said undivided interest in said land embraced in said boundaries, upon the basis of the acreage reported by the surveyor, and executed and delivered to Nottingham his three notes, one for $1005 due January 15, 1922, one for $1600 due July 1, 1923, and one for $1600 due Jan-
We think the petition sets forth a cause of action for reformation and for recovery of the difference between the price of the land actually sold and conveyed and the land actually paid for. If one sells an undivided interest in all lands lying within designated boundaries, at $10 per acre, and the purchaser agrees to take and pay for an undivided interest in all the lands in such designated area at such price per acre, the quantity of acres to be fixed by survey by the county surveyor, and the county surveyor makes such survey and reports to the parties that the tract of land contains 660 acres, whereupon the owner sells and the purchaser buys upon the basis of this acreage, but the surveyor makes a- mistake in the measurement of the acreage whereby the purchaser gets 1019-1/6 acres instead of 660 acres, and the owner receives pay for only 660 acres, the facts make a case of mutual mistake which will entitle the seller to a reformation of his bond
But it is insisted by counsel for the plaintiff in error that the allegations of the petition as to mistake in the acreage are too vague, uncertain, and meager to authorize the grant of equitable relief. The petition alleges that the owner discovered that he had conveyed a one-half interest in more than 660 acres of land to the purchaser, and thereupon had said land resurveyed, and that as a result of such resurvey he avers that he conveyed to the purchaser a one-half undivided interest in 1019-1/6 acres of land by his deed. It is insisted that the petition does not disclose who made this resurvey, that it does not allege that the surveyor making the resurvey was a competent surveyor, and it does not allege that the resurvey was accurate and correct, that nowhere in the' petitionfis it alleged, except inferentially, that the first survey was erroneous, and that there is no specific allegation in the petition that the tract of land in question contains 1019-1/6 acres. We think the allegations of the petition, as against the general demurrer, are sufficient in these respects. They amount to statements that the first survey was incorrect and erroneous, and that by a correct survey the tract actually contains more land than that shown by the first survey. If the defendant wished more specific and direct information upon these matters, he should have demurred specially to the paragraphs of the petition containing the allegations upon this subject.
It is next urged that the plaintiff’s cause of action is barred by the statute of limitations and by his laches in seeking the equitable relief prayed by him. The petition seeks reformation of the bond for title-and deed made by the plaintiff to the defendant. It has been held that the statute of limitations applicable to an
Is the plaintiff barred by laches ? The bond for title sought to be reformed was made on June 27, 1921. The deed sought to be reformed was made on February 5, 1923. The discovery by the plaintiff of the error in the survey was had on September 12, 1925. The petition in this ease was filed on October 1, 1925. Under these facts we can not hold, as a matter of law, that the petition of the plaintiff is barred by his laches.
Judgment affirmed.
Concurrence in Part
concur in the result, but dis-
sent from the ruling in the third headnote. That ruling purports