Roberts v. Mansfield , 32 Ga. 228 ( 1861 )

By the

Gowrt.—Lumpkin, J.,

delivering the opinion.

We think it best to remand this cause for a rehearing. It seems not to have been submitted to the jury in such a way as to direct their attention to the exact issue .upon which it depends, and the law applicablé thereto.

Did the evidence justify the reformation of the contract bétween Mansfield and Pate, as to the transfer of the Fair-cloth mortgage?

The Courts uniformly hold, that the mistake should not only be distinctly alleged, but that the proof should be clear and satisfactory, to reform a writing. And it is reasonable and right that it should be. Pate testifies that it was the contract and understanding, that Mansfield was to have and hold a prior lien on the land under the mortgage, to secure the payment of the note which he retained ; and that Mansfield declared that he would not make the transfer upon any other terms. And yet, Mr. Yason, a clear-headed, skillful attorney, who seems to have been acting as counsel for Mansfield throughout, swears that he drew the instrument just as he was told to do by Mansfield and Pate, and yet, the paper contains no such reservation.

It may be that what Pate states is true, namely, that the agreement was as he represents; and yet, the part left out was intentionally omitted; the parties supposing it was binding, though resting in parol only. If this be so, it cannot now be incorporated. Besides, this omission was not one of those occult matters that was likely to escape the notice of Mansfield and Pate. It was simply whether Mansfield retained the lien of the mortgage to pay his note first, or parted with it to Pate for Treadwell.

This being the state of the testimony, the Court charged the jury that the question of notice did not arise in this case, and that Roberts, the present holder of the note traded to Treadwell, was bound by the mistake in the agreement, whether he had notice of it or not. The Judge, it will be perceived, without submitting it to the jury to find whether or not the mistake existed, under the somewhat stringent rules of evidence applicable to this doctrine, assumes that the mistake existed in the pointed language which we have quoted, and then tells the jury that Roberts is bound by it, whether he knew it or not. And in the bill of exceptions this charge stands alone, unqualified and unexplained by any thing which accompanies it.

If the testimony establishing the mistake was clear and satifactory, we might sustain the judgment, notwithstanding the assumption by the Court that the mistake was proven. But the evidence not being of this character, we may well suppose that the charge may have had a controlling effect upon the jury, coming, as it did, from the mouth of the Court.

If it be true that the law, independent of any contract, transfers the mortgage with the note, so as to entitle the transferee to a preférence over the mortgagee who held the first note, the proof in such case should be stronger still to restrict this right. (See Collins vs. Irwin) executor of Hitchcock ; 4 Ala. Rep.)

Indeed, for myself, I confess I am not very sure that not only the mortgage, but all contracts to further the collection of this second note, are transferred by operation of law with the note to the holder, and the note being traded before due, the mortgage, as well as this contract between Mansfield and Pate, goes with the note, divested of any equity which might exist between the original parties. I would not commit myself, however, much less the Court, upon this last point. Judgment reversed.