Adair v. Adair , 38 Ga. 46 ( 1868 )

Walker, J.

This was a bill filed by the executor and legatees of Edward Adair, to reform a deed made by testator, to John R. McDonald. During the trial, the Court permitted the sayings of Edward Adair, made after the execution of the deed, and in the absence of the grantee, to be proved on the part of the complainants, for the purpose of showing that the deed, as written, did not speak the intention of the maker. The admission of this testimony was objected to, and assigned as error in this Court. Section 3735 of Rev. Code says, “Declarations of privies in estate, after the title has passed out of them, cannot be received.” This is conclusive in this case. It is admitted by both sides, that the title passed out of the testator, and his sayings, made after the deed, were proved to defeat the title of John E. McDonald, the grantee named in the deed. These sayings were madejn the absence of John B. McDonald, and .some of them after his death. This testimony was inadmissible, and on this ground, we reverse the judgment of the Court below.

As there is to be a new trial, it 'would be improper to pass upon the question as to the weight of the evidence.

Some of the questions growing out of the charge of the Court, and the requests to charge, are interesting, but perhaps it is not necessary to pass upon them seriatim now.

In Admr. of Ligon vs. Rogers, 12 Ga. R., 255, the Court says, “That a court of equity has jurisdiction to correct mistakes in written contracts, has been solemnly adjudicated by this Court. It is a jurisdiction, however, which will always be cautiously exercised.” Again, in the same case, on page 288, the Court says that the written evidence of the intention of the parties must prevail, unless the party can show, “by clear proof, and satisfactory evidence, that either by accident, fraud or mistake, the written instrument does not ■contain and express what the parties intended it should corntain and express, at the time of its execution.” In Shellburne vs. Inchinquin, (1 Brown’s Ch. 347,) Lord Thurlowsaid the evidence must be strong, irrefragable evidence. By this, we understand that evidence offered to establish the mistake must not be equivocal, uncertain, contradictory, or doubtful in its character. The evidence to show a mistake in a written instrument, must be clear and strong, so as to establish the mistake to the entire satisfaction of the court. Gillespie vs. Moon, 2 J. C. R., 585.” Again, in Wyche vs. Green, 16 Ga. R., 61, this Court says, “In every case, under this head of the law, the only question is, does the instrument contain what the parties intended it should, and understood that it did ? Is it their agreement? If not, then it may be reformed by aliunde proof, so as to make it the evidence of what was the true bargain, or contract between the parties.” A court of equity will relieve from the consequences of mistake in written contracts, but the power is exercised with caution, and to justify it, the evidence must be clear, unequivocal and decisive, as to the mistake. Rev. Code, sec. 3062. Such is the language of our law in relation to the power of the Court of Equity to reform written instruments, and the rules by which it will be governed in the exercise of this jurisdiction.

Judgment reversed.