Blaylock v. Hackel , 164 Ga. 257 ( 1927 )

Hines, J.

1. The deed as written evidences a sale of the land therein conveyed as one by the tract and not by the acre, and conveys all the land within the boundaries therein given. Georgia & Florida Development Co. v. Buck, 134 Ga. 674 (68 S. E. 514); Rawlings v. Cohen, 143 Ga. 726 (85 S. E. 851); May v. Sorrell, 153 Ga. 47, 53 (111 S. E. 810). Unless such instrument is reformed, it can not be show by parol that the sale was one by the acre and not by the tract.

2. The petition does not make a case for cancellation of the deed, as it fails to allege restoration or an offer to restore the consideration received by plaintiff before the institution of the suit, which is a condition precedent to the right to bring such suit. Williams v. Fouché, 157 Ga. 227 (121 S. E. 217).

3. “In all cases of a mistake of fact material to the contract, or other matter affected by it, if the party complaining applies within a reasonable time, equity will relieve.” Civil Code (1910), § 4580. “If the form of conveyance is, by accident or mistake, contrary to the intention of the parties in their contract, equity will interfere to make it conform thereto.” Civil Code (1910), § 4567. Where the owner of land within’ given boundaries agreed to sell the same for $75 per acre, and the purchaser agreed to pay for such land at that price per acre, and where an engineer was engaged to ascertain the number of acres, who calculated the acreage within the boundaries to be 10 acres, and where a deed was made in accordance with- said calculation, and the consideration was figured on the basis of 10 acres, and said land was paid for by the purchaser on said basis, both parties believing that the tract sold contained said number of acres, and the deed from the seller to the buyer was executed by the former and accepted by the latter under the belief that the tract of land contained 10 acres, when in fact said land lying within said boundaries contained 23 acres, the mistake in the acreage being due to the error of the engineer in ascertaining the number of acres, in such circumstances said deed was executed under a mutual mistake of the parties, and a court of equity will relieve against such mistake by reforming the deed to make it conform to the real contract of the parties; and a court of equity will award the seller a ratable compensation for the excess of acreage over that represented by the incorrect calculation of the engineer. Branch v. Cooper, 82 Ga. 512 (9 S. E. 1130) ; Kitchens v. Usry, 121 Ga. 294 (48 S. E. 945) ; Whittle v. Nottingham, 164 Ga. 154 (138 S. E. 62).

A. The petition sets oiit a good cause of action for reformation of the deed, and for recovery of ratable compensation for the excess of acreage over that for which the defendants actually paid.

5. A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance. The bad part in pleading does not make the whole bad; the good part makes the whole good enough to withstand a general demurrer. McLaren v. Steapp, 1 Ga. 376; May v. Jones, 88 Ga. 308 (4), 312 (14 S. E. 552, 15 L. R. A. 637, 30 Am. St. R. 154); Dyson v. Washington Telephone Co., 157 Ga. 67 (3), 78 (121 S. E. 105). Where the petition alleged facts applicable to an action for cancellation, and had an alternative prayer for cancellation, the fact that the allegations of the petition do not make a case for cancellation does not render the petition subject to a general demurrer, if the petition seeks refomnation of a deed and sets out facts which entitle the plaintiff to such relief.

6. Tlie 4th paragraph of the petition contained these allegations: “The negotiations and agreements leading up to the sale of said land were on an acreage basis, defendant agreeing to pay $75 per acre for said land.” The defendants demurred specially to this paragraph, upon the ground that the allegations therein “are mere conclusions of the pleader, and allege no facts on which to base the same.” Held, that this ground is without merit. In effect this paragraph alleges that the negotiations which led up to the contract Of sale were based upon acreage, and that the defendant agreed to pay $75 per acre for the land sold. The gist of the paragraph is the agreement of the defendant to pay by the acre, and it is specifically alleged as a fact that he did so agree. The details of the negotiations leading up to the agreement are not essential.

7. The 5th paragraph of the petition alleges: “An engineer was engaged to survey said tract, who calculated the acreage to be 10 acres, and a deed was made in accordance with said calculation, and the consideration calculated on the basis of 10 acres, and was paid for by defendant on said basis, all parties believing and contracting on the basis that the tract of land contained 10 acres.” To this paragraph the defendants specially demurred, upon the ground that the name of the engineer was not given, and on the further ground that it was not stated who employed said engineer, or when he was engaged. Held, that this ground is without merit. The necessity fpr giving the name of the engineer would be to inform the defendants who the engineer was that made this calculation; and knowledge of this fact by the defendants can be fairly inferred from the further allegation in this paragraph that the deed was made in accordance with the calculation made by the engineer, and was paid for by the defendants on said basis, both parties contracting on the basis that the tract of land contained the number of acres reported by the engineer. From these allegations it necessarily appears that the defendants knew who the engineer was. It was not necessary to allege who employed the engineer, or when he was employed.

S. Applying the above principles, the trial judge erred in sustaining the general and special grounds of demurrer, and in dismissing the petition.

Cancellation of Instruments, 9 C. J. p. 1207, n. 32; p. 1213, n. 71; p. 1240, n. 50; p. 1241, n. 57.

Deeds, 18 C. J. p. 287, n. 14; p. 289, n. 44, 48, 49.

Evidence, 22 C. J. p. 1125, n. 31, 33.

Pleading, 31 Cyc. p. 53, n. 93; p. 326, n. 45, 47; p. 329, n. 61; p. 331, n. 63.

Reformation of Instruments, 34 Cyc. p. 905, n. 9; p. 908, n. 38; p. 909, n. 42, 44; p. 915, n. 86; p. 936, n. 52, 54, 60; p. 938, n. 63; p. 966, n. 76; p. 971, n. 26; p. 974, n. 48, 49; p. 994, n. 87; p. 996, n. 93.

No. 5681. May 4, 1927.

Judgment reversed.

All the Justices concur. Milner & Farlcas, for plaintiff. S. B. Lippitt, for defendants.