Kytle v. Collins , 67 Ga. App. 98 ( 1942 )

By amendment the plaintiff sought to recover of the defendant Kytle in his capacity as executor. The court in its charge eliminated the issue as to the liability of the executor. The jury found against the defendants as individuals. There was no exception to the charge of the court exonerating the executor. Under the rulings in Penn Mutual Life Insurance Co. v. Taggart, 38 Ga. App. 509 (144 S.E. 400), no affirmative action would lie against the individual defendants for an alleged fraud not involving conscious moral guilt. The only authority I have been able to find which seems to authorize an affirmative action based on legal fraud is Code § 29-201, and it seems to authorize such an action against a vendor. Since the individual defendants in this case were not vendors and there was no evidence of conscious moral guilt, the verdict against the individual defendants was unauthorized.

In my opinion the second count set forth a cause of action against Kytle, as executor, and the court did not err in overruling the general demurrer to the same. The Code, § 29-201, seems to mean that when land is sold by the acre there is a warranty of acreage. Obviously the section refers only to vendors who have authority under law to make a warranty, and therefore not to executors and administrators; that is, the section refers to such vendors as respects warranties. McKinnon v.Sheffield, 149 Ga. 219 (99 S.E. 855). It seems to follow that whatever affirmative actions are authorized by the section against representatives must be based on fraud, or mistake amounting to fraud, and that it is therefore immaterial whether the land in this case was sold by the acre or by the tract. It seems to be well settled that the Code section authorizes an affirmative action against the representative of an estate for actual fraud. The decision in Folsom v. Howell,94 Ga. 112 (21 S.E. 136), is, in my opinion, authority for the proposition that an action lies against the representative of an estate for legal fraud. It is true that there were representations in that case in addition to the kind we have in the instant case, but the principle involved is the same whatever the nature of the misrepresentations as to quantity. In the case just cited there was a prayer for a reformation of the deed, but such a prayer was not necessary to the grant of relief for fraud. It would have done no good to reform a sale into a sale by the acre rather than by the tract, when the injured party would be entitled to the same relief in either case, since the rule of apportioning acreage sold by the representative of an estate is essentially different from the rule when applied to an ordinary vendor in the respect we have pointed out. Folsom v. Howell, supra, so far as we have been able to find, is the oldest case in which the question under discussion was raised and decided. There are a good many older cases in which it is stated or intimated that there can be no action for legal fraud, but in none of them was such a ruling called for by the facts or pleadings. InBeall v. Berkhalter, 26 Ga. 564, there was no claim of fraud of any kind. Since the decision in that case the provision with reference to "mistake amounting to fraud" has been inserted in our Codes and now appears in section 29-201. The statement inWalton v. Ramsey, 50 Ga. 618, to the effect that the above Code section did not introduce a new element of actionable fraud is obiter dictum, because there was no contention in that case that there was actual fraud or mistake amounting to fraud. Since I regard the ruling in that case as obiter on the question here, it may be that I would be justified in calling attention to another statement which seems to be out of line with later decisions. The court stated that the deficiency of land had to be so gross as to be evidence of actual fraud. Under the Code section it is hard to understand how a deficiency can be due to mistake and fraud at the same time. I can't see how a mistake could be evidence of fraud. Judge Lumpkin stated in Kendall v.Wells, 126 Ga. 343, 352 (supra): "But for previous rulings, it might be argued with force that the Code did make a change." Judge Fish made a similar statement in Finney v. Morris, 116 Ga. 760 (supra). In my opinion the decision in Estes v. Odom, 91 Ga. 600 (18 S.E. 355), supports rather than weakens the ruling in Folsom v. Howell, supra. In view of the controlling authority of the older case in point I think the court correctly overruled the demurrer to the second count of the petition.