Rawson v. Brosnan , 187 Ga. 624 ( 1939 )

Jenkins, Justice.

This was an equitable proceeding for partition, injunction, and receiver, by the holder of a security deed and a sheriff’s deed after foreclosure, covering an undivided half interest in realty, against the grantor of the security deed and a subsequent grantee holding a junior security deed, who together owned the other half interest. There was but one issue, and this was raised by the plea of the two defendants, to wit, whether by a mutual mistake the plaintiff’s security deed of the half interest in 406% acres more or less covered 10 acres “immediately around [a] mill-site and [the] mill-site” on the described property, and whether the defendants were entitled to a reformation of the instrument by excluding this smaller tract from the partition. It was agreed in open court that the plaintiff’s deed “contained words of description sufficient to cover and convey the land in question,” and that the recorded surveyor’s map referred to in the deed also covered such land. The defendant grantor testified that the entire tract, including the disputed 10 acres, contained 416 or 417 acres, instead of 406% acres as described in the deed; and he swore generally that the security deed and the loan did not cover the disputed land, that it was not the intention of either party for it to do so, and that such an inclusion was a mistake. He further testified, however, that “No error is made in the deed that I know of;” that “I never mentioned the 10 acres around the mill-site;” and that the grantee “didn’t even know about the ten acres . . it was never mentioned or discussed.” The court directed a verdict against the defendants’ plea for reformaton, to which they excepted. Held:

1. Equity will not reform a written contract on account of a mistake, unless the mistake was one of both parties. Some particular mutual mistake and how it occurred must be alleged and plainly shown. Code, §§ 37-207, 37-208, 37-202; Helton v. Shell nut, 186 Ga. 185 (197 S. E. 287), and cit.; Crim v. Alston, 169 Ga. 852 (151 S. E. 807). Accordingly, under the general rule that a party’s own testimony is to be construed most strongly against him, the defendant grantor was not entitled to reformation.

3. Nor was the grantee in the second security deed entitled to reformation in the first deed, even though it might be held that as to him the evidence of his co-defendant could be taken to indicate that the first security deed did contain an incorrect description due to a mutual mistake of the parties thereto, since the second grantee, being a stranger to the prior security deed from his grantor to another person, is not entitled to reformation of the first deed. Garlington v. Blount, 146 Ga. 527 (91 S. E. 553). Especially is this true where, as here, the junior deed expressly recites the existence of the previous security deed and lien; and under such circumstances the holder of the junior deed will not be permitted to deny the truth of such recital by showing that the disputed land, covered by the previous instrument, was not so intended. Setze v. First National Bank of Pensacola, 140 Ga. 603, 606 (79 S. E. 540); Jenkins v. Southern Ry. Co., 109 Ga. 35, 40 (34 S. E. 355), and cit.; Long v. Bullard, 59 Ga. 355 (3).

3. In accordance with the foregoing rulings, the court did not err in directing the verdict against both of the defendants, and in refusing a new trial.

Judgment affirmed.

All the Justices concur, except Bell, J., who dissents.