Mitchell v. Mitchell , 40 Ga. 11 ( 1869 )

Brown, C. J.

1. This Court will not control the discretion of the Court below in granting or refusing to grant a continuance, unless the Judge has abused the discretion which the law vests in him. In this ease the Judge had allowed two continuances for the same cause, and had, on the second application, given notice that the complainant’s counsel must be prepared with his affidavits by the time fixed upon for the hearing. Under these circumstances we are not prepared to say that the Court did wrong in overruling the motion.

2. The copy of the verdict was not accompanied by a copy of the bill, or answer, or other parts of the record, and should not have been received as evidence of a finding against the complainant in a former action.

3. But the more important question is, as to rights of the complainant under the bill filed for a reformation of the deed, and for an injunction. It is argued, with zeal and ability, that the complainant can not have the relief he seeks without proof of a mutual mistake on the part of donor and donee, and that the donee, who was' not present when the deed was executed, swears off the equity of the bill when he denies all knowledge of the intention of the donor to retain his dwelling-house and the cleared lands adjoining it, when he made the deed, arid of his mistake in believing that they were upon the lot adjoining the one conveyed.

Section 3061 of the Code provides that equity will not interfere to relieve against accidents, or mistakes of mere volunteers. And section 3069 of the Code, treating of mistakes of law, declares that the Court must be satisfied by the evidence that the mistake was mutual to. authorize the reformation of a contract. The fair construction of this latter provision would seem to be, that as between purchasers for a valuable consideration and the grantor, the mistake must be mutual. But as the Court is not authorized in any case to relieve volunteers against mistakes by reforming the conveyance, it can hardly be a fair construction to say that the mistake must have been known to them at the time the deed was executed, before the grantor can be relieved by reforming a voluntary conveyance, executed by him, on account of mistake.

Volunteers in contracts, are defined to' be “persons who receive a voluntary conveyance.” 2 Bouvier’s Raw Dictionary, 636. It is very clear, therefore, that a Court of Equity would have no power under our Code to relieve the, donees in this deed, who are volunteers, if they were applying for a reformation of the contract. But it does not follow that the grantor is not entitled to relief if a proper case is made by the bill; and the more especially is this true, as the mistake is one of fact and not of law. Section 3070 of the Code declares that, “ In all cases of a mistake of a fact material to the contract, or other matter affected by it, if the party complaining applies within a reasonable time, equity will relieve.”

Again, by section 3062 it is enacted that, “Mistake relievable in equity, is some unintentional act or omission, or error, arising from ignorance, surprise, imposition or misplaced confidence. This power is exercised with caution, and to justify it the evidence must be clear, unequivocal, and decisive as to the mistake.” ,

We may remark here that the testimony of the grantor himself to the fact of his intention, and that he labored under a mistake when he made the deed, would not be sufficient, unless it is sustained by other testimony or by corroborating circumstances.

Apply the facts in this case to the rule laid down, and we .think there is equity in this bill. The grantor was an old man, over eighty years of age. His object in making the conveyance was to provide in his lifetime for his children and grand-children, He owned too lots, side by side, each containing four hundred and ninety acres. The line between them was not distinctly marked. He acted under the belief that the line run some eighty to one hundred yards north of his dwelling-house, where a fence divides the cleared from the woodland. He has a family (probably a second wife,) with three small, children. It turns out by the survey, made at the instance of the donees, since the controversy commenced, that the line between the two lots, as originally-surveyed, was not marked, that it runs between his dwelling-house, and smoke-house, and through his crib, leaving the dwelling-house, kitchen, and other out-houses on the lot conveyed, and only leaving his smoke-house, stables and half of his cribs on the lot retained by him.

Now if we take into consideration the object had in view by the donor and his own condition, it is not reasonable to conclude that he intended to convey his dwelling-house, and part of his out-houses, and the cleared land around them, which had been manured and was his best land for cultivation, to his first children, and at his advanced age to leave his dwelling with his little children and give it up to his older children, who were able to take care of themselves.

Mr. Harris, who drew the deed, swears that at the time it was drawn the understanding with the old man was, that the line run north of his dwelling-house, and that he was to remain in the dwelling-house during his life.

Upon the whole, we think the bill and affidavits make a strong case in favor of the complainant — sufficient to satisfy a reasonable mind, that he committed an “ unintentional error arising from ignorance” of an important fact, in the true location of the line between the two lots, when he executed the deed; and we are satisfied the injunction should have been held up till the trial of the cause, and that the Judge erred in ordering that it be dissolved.

Let the-judgment be reversed.