Hamilton v. Cargile , 127 Ga. 762 ( 1907 )

Beck, J.

(After stating the facts.)

1. The amendment to the petition, tendered by the plaintiffs, and which is set out in the statement of facts, was properly disallowed by the court. Even if it be treated as sufficiently setting forth a case which made an accounting proper, and if it be a valid tender, the result of the amendment, if it had been allowed and proved and full effect given to it, would have been to-require of the court the rendition of a decree adjudging a deed, absolute on its face, to be merely a deed to secure a debt; but the person who had purchased the property included in the alleged security deed had treated the same as an absolute deed of conveyance, and had himself executed a deed conveying a life-interest in the property to the defendant, and a remainder interest to a minor child of the latter, and this child was directly interested in the issue as to whether or not the deed was of the character which the plaintiffs sought to have impressed upon it, and was a necessary party to any action instituted with the purpose of accomplishing the end towards which the amendment tends.

While there is no prayer for a reformation of the deed from Cargile to Neal, the consequences of having the instrument adjudged to be a mere deed to secure the payment of a debt would be the same in effect as a reformation of the same. Such a change in the character of the deed, as it appears on its face to be, is one which would vitally affect property rights of- the defendant’s child in whom is vested a remainder interest, as it does the defendant herself. As was said by the court in the case of Wyche v. Green, 32 Ga. 341, “The rule is, that all persons having a legal or equitable interest in the subject-matter of the suit must be made parties. . . It is manifest that the parties now sought to be brought in are directly and materially interested in the subject-matter of the suit. No court of equity should undertake to reform a written instrument conveying title to property, in an essential matter, without having before it all the parties to be affected by the proposed reformation.” See also Brown v. Brown, 97 Ga. 531.

2-5. What is said above, in connection with the headnotes, disposes of all material issues in the case.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.