Taylor v. Fowler , 155 Ga. 654 ( 1923 )

Beck, P. J.

(After stating the foregoing facts.)

The court properly sustained the demurrer to the part of the answer contained in the amendment, in which the defendant attempted to set up and plead the parol agreement between, herself and her vendor, Carnes, under the terms of which certain rights were given to both of the parties, and in which it was stipulated that under and upon certain conditions the defendant would be entitled to a rescission of the contract for the purchase of the lands in question. The contract between the parties was complete when the defendant executed the notes for the purchase-price of the land and received the bond for title. She can not engraft upon this contract an additional supplementary contract in parol, which varies, contradicts, and in effect renders nugatory the complete written contract. Nor is the defendant entitled to a reformation of the contract. Fraud in the procurement of it upon the part of her vendor is not shown, nor is there such mutual mistake shown in the drawing of the contract as entitles her to reformation. Though the defendant thought that the parol contract which she pleads could be set up to vary or destroy and rescind the written contract, such ignorance of the law will not avail to destroy a valid written contract not procured by fraud nor drawn by mistake. What the defendant pleads is ignorance of the law, and not such a mistake of law as would enable a court of equity to afford the relief sought.

Error is assigned in two grounds of the motion for a new trial upon rulings of the court which excluded evidence of the insolvency of the defendant’s vendor, Carnes. The title to this land, under the evidence in the case, is shown to be in Fowler, the plaintiff in this suit. Carnes had Fowler’s bond for title, conditioned to convey the land upon the payment of Carnes’ notes to the amount of $11,500. Whether Carnes had paid any of this $11,500 or not is not disclosed by the evidence. Presumptively the entire amount was still due Fowler. If Carnes is insolvent and there is a paramount outstanding title, as appears from this evidence, then the plaintiff could have set up these facts as a defense to the notes had Carnes himself brought suit upon them. And where the notes had been sold and transferred to a third partjr, the same defense could be made against such transferee, though the notes were purchased before maturity, where such transferee took with notice that the notes were given for the purchase-price of land and the transferee knew that the payee of the notes did not have title to the land and was insolvent. But it is replied in this case that Fowler, the man who is bringing suit, is himself the owner of the land and is willing to make title 'upon the payment of the notes. If so, — that is, if he is willing to make title upon the payment of these notes, he should have pleaded his readiness to make title upon recovery of judgment and the satisfaction of the same by the defendant. He did not do so, though he inti-, mates in his evidence a willingness to execute deeds to the land when Carnes’s debt to him is paid. Under these facts it may be that having obtained this judgment, with knowledge of the fact that the notes were given for the purchase of the land, and under his statement in his evidence, he would be estopped from questioning in any future suit the title of this defendant in case she should pay the judgment against her. But the defendant is entitled either to have the contract rescinded or to have a deed upon the payment of the purchase-price. It may be that if Fowler should recover judgment in this suit the amount of the judgment would not satisfy the notes of Carnes, which amount to $11,500, and the owner could not be compelled to execute a deed of conveyance to the land until Carnes’s notes for the purchase-price of the land were satisfied. Consequently, as the pleadings and the evidence stood, it was error to exclude evidence of the insolvency of the vendor of the defendant. But complete justice may be done in this case, if, before the remittitur of this court is made the judgment of the court below, or within ten days thereafter, the plaintiff will file an amendment to his action, offering, upon payment of the judgment recovered in this suit of the full amount of defendant’s notes, to execute a deed of convéyanee to her; then the plaintiff shall have judgment against the defendant, and the court in the decree and judgment entered up shall provide for the execution of such conveyance upon the payment by the defendant of the amount recovered by the plaintiff. ' If the plaintiff so amends, a judgment and decree shall be taken in favor of the plaintiff in accordance with the ruling made above; otherwise, the judgment refusing a new trial is reversed, so that the case may be heard again.

Judgment reversed,, with direction.

All the Justices concur.