Summary
Reformation of agreement. Before Judge Meldrim. Chatham superior court. October 24, 1921.
Coleman Johnson filed his petition against Lester Green, returnable to the October term, 1920/ of Chatham superior court. He alleged, that on March 23, 1919, he placed in the hands of Stillwell Realty Company for sale that certain house and lot designated on the official map of the city of Savannah as the northern one half of lot 133 Johnston ward; that the Stillwell Realty Company negotiated a sale thereof to the defendant, Lester Green, and executed to the purchaser a sale ticket thereto, in which the property is described as “797 Wolff street in Johnston ward;”' that the house and lot described in the sale ticket as “ 797 Wolff street” is the same property as the northern half of lot No. 133; Johnston ward; said northern half extending from Wolff street to a high board fence dividing the whole of said lot exactly in half, and separating the northern half from the lot and houses on the southern half, which border on a lane and face in the opposite direction from the house on the northern half, and are known as 794 and 796 Hall Lane East; that on the same day when the sale ticket was executed petitioner and the defendant executed a certain agreement for title, based on the sale ticket, to cover the same property; that by error of the scrivener the property was described in said agreement for title as “lot one hundred and thirty-three (133) Johnston ward” instead of the northern half of lot 133 Johnston ward, as it should have been; that petitioner only intended and thought he was conveying the northern half of said lot; the defendant well knew that the agreement for title was only meant to cover the northern half of said lot 133 Johnston ward, with improvements thereon, and never had meant and did not mean to purchase the whole of said lot and the several houses thereon; that the defendant at once informed the tenant in the house on the northern half of said lot of the purchase, and at once began to collect the rent therefrom, and several months later himself moved into the aforesaid house, and has been in the actual possession thereof since then, but the defendant did not then inform the tenants in the houses on the southern half of said lot that he was their landlord, nor did he attempt to go into possession thereof, nor to collect the rents therefrom, nor to make any demand on petitioner therefor; and it was not until some -twelve months later that, being apprised of the error in the description,' he attempted to collect the rents thereof, and made certain demands on petitioner for the possession of the same, and thereafter oh April 16, 1920, placed on record the agreement for title; that at the time of the execution of the agreement for title petitioner did not own and was not in possession of the southern half of lot 133 Johnston ward, having conveyed the same to one George Clark, by deed dated September 12, 1913, of record in Chatham county, book of deeds 11-0 folio 97; that the amount shown in the agreement for title as consideration for the same is a reasonable price for the northern half of said lot, but is grossly inadequate 'to cover the purchase-price of the whole of said lot and the improvements thereon, as the defendant then and there well knew or should have known; that when the error was called to petitioner’s attention he at once called upon the defendant to execute a quitclaim deed for the southern half of said lot, or to destroy the agreement for title and execute a new one on the same terms and conditions, limited to the northern half of said lot, which the defendant refused and still refuses to do. Petitioner prayed that both copies of said agreement for title be so reformed as to express the intent both parties, and so that, when reformed, the description should read as follows: All that said lot or parcel of land lying and being in the State of Georgia, County of Chatham, the northern half.of lot No. 133 Johnston ward, and improvements thereon.
In his answer the defendant denied that petitioner placed with the Stillwell Realty Company for sale a house and lot, designated on the official map of the city of Savannah as the northern one half of lot 133 Johnston ward. He admitted the execution of the sale ticket, and that in said ticket the property is described as “797 Wolff street in Johnston ward.” He denied that “ 797 Wolff street ” is the same property as the northern half of lot 133 Johnston ward. He admitted the execution of the agreement for title, as set out in the petition. He denied that the property conveyed was, by error of the scrivener, described in the said agreement of title as “lot 133 Johnston ward,” instead of the northern half of said lot. From lack of information he was unable to admit or deny that the plaintiff only intended and thought he was conveying .the northern half of said lot. lie denied that he knew that the agreement for title was only to cover the northern half of said lot and improvements thereon, and that he had never meant, and did not mean, to purchase the whole of said lot and the several houses thereon. He admitted that he at once informed the tenant in the house on the northern half of said lot of his purchase thereof and later on moved into the same; but denied that he did not then inform the tenants in the houses on the southern half of said lot that he was their landlord, that he did hot attempt to go into possession thereof, nor to collect the rents therefrom, nor to make any demands on petitioner therefor, that it was not until some twelve months later, being apprised of the error in the description, he attempted to collect the rents thereon aiid make demands on petitioner for the collection of the same, and that thereafter, on April 16, 1920, he placed on record the said agreement for title. From lack of information he conld neither admit nor deny the allegation that petitioner did not own and was not in possession of the southern half of lot No. 133 Johnston ward, having conveyed the same to one George Clark by deed dated September 12, 1913, etc. He denied that the amount shown in the agreement for title as consideration of the same is a reasonable price for the northern half of said lot but is grossly inadequate to purchase the whole of said lot and the improvements thereon, as he then knew, or should have known. He admitted that the plaintiff called on him to execute a quitclaim deed to the southern half of said lot, or to destroy the agreement for title and to execute a new one on the same terms and conditions, limited to the northern half of said lot, and that he refused and still refuses to comply with said request. He further alleged that at the time he purchased the property in question lie believed that he was buying the whole of said lot; that he was not advised of any adverse claim to any portion of said lot, and if he had-known that he was negotiating for the northern half of said lot he would not have purchased the same for the price as agreed on by him, as said price was the full and fair value of the entire lot.
By amendment the defendant admitted that the sale ticket was made to him, but denied that it was for the northern half of lot 133 Johnston ward, but on the contrary was for the entire lot.
On the trial the plaintiff testified that the agreement for title was signed by him and he placed in the hands of the Stillwell Bealty Company for sale the northern half of lot 133 Johnston ward, the street number of the same being 797 Wolff street. He gave the Stillwell Bealty Company written authority to sell that one half. He only intended to convey the northern half of lot 133 Johnston ward, and did not intend to convey the whole lot, because it was cut in half when he built on the northern half. After dividing it he built two houses there, 197, 196, and 194 is the number of the house in the lane, and 797 is the front number on Wolff street. He sold the two houses to Clark & Clark, namely, the southern one half of that lot on September 12, 1913. Green came to him to rent the house in the front, and he was collecting the rent from the house in the front. Green came to him after he had bought the lot and spoke to him about collecting the rent. There was a little rent that the man had paid in advance on 797 Wolff street, the northern half ; and he gave Green a portion of the money back, after the sale. Green did not say anything to him about the houses on the southern half, or ask him anything about the rents. Plaintiff did not know what the whole lot and improvements were worth. The northern half was sold to Green for $2600. The other half, with improvements, is worth about $2000.— Cross-examination: Can read and write a little. The signature to the bond for title is his, but he did not read it over, as he thought they knew what was to be deeded. Mr. Williams, in the office of the Stillwell Eealty Company, presented the paper to him and said it was a bond for title. Did not read it, as he had confidence in them that they would do the right.—’Here the court said to the witness: “See if you can read out the writing part of it.” The witness read as follows: “ Green of said county, between Coleman Johnson of the second part, of said county and State of the first part, witnesseth the said party of the first part.” He signed the paper which Mr. Williams drew up, because he said it was the proper paper.
A. F. King, for the plaintiff, testified: On March 22, 1919, he was vice-president of the Stillwell Eealty Company, and on that date executed the sale ticket in question, the Stillwell Eealty Company representing Coleman Johnson. The sale ticket is for 797 Wolff street. The agreement for title executed between Coleman Johnson and Lester Green was intended to follow, as to the property, the sale ticket. The agreement was drawn up by the Still-well Eealty Company, and was given to the plaintiff when the sale was made, and he came there and it was tendered to him for his signature.— Cross-examination: I drew the papers myself. They were signed in the presence of the two witnesses who attested them. I am unable to say whether I was present when they were executed. Not able to say whether they were read over when they were signed. I drew the bond for title for the purpose of conveying the property described in the memorandum of sale. The property in question was sold for $2600. I never saw this property until this morning. I went out there this morning, and consider the property worth about $3700 or $3800 as a whole.
Feay Shellman, for the plaintiff, testified: He was a draftsman in the city engineer’s office, and made a drawing or map of lot 133 Johnston ward, the information having been furnished by E. M. Bailey, who made the survey. The map represents 133 Johnston ward as represented on the city map, and shows the entire lot of land. Said map does not show the lot as surveyed.
Eoy M. Bailey, for plaintiff, testified: I prepared the information from which this map was drawn, a survey of lot 133 Johnston ward. The line in the middle represents the fence about 6 1/2 feet high, solid board fence. There is one house in the lane, the partition between them, making two houses, which face south; in front it faces north.. There are two separate lots so far as the dividing fence is concerned, but the city map does not show any division., The fence is of a permanent character, and divides the lot in half.—-This map was introduced in evidence.
W. H. Stillwell, for plaintiff, testified: I was president of the Stillwell Eealty Company on March 22, 1919. Am familiar with lot 133 Johnston ward, and the improvements thereon. I have been in the real-estate business ten years, and am well acquainted with the real-estate values in the city of Savannah. The reasonable value of lot 133 Johnston ward, with improvements, is $3800, and the reasonable value of the northern half of the lot with the house on it is $2600. It is my recollection that that was the price at which it sold. I know nothing of the execution of this bond for title, and I do not know how much this property is returned for taxes. The last time I saw it was probably two years ago. I only handled the property for Coleman Johnson for sale.
J. G-. Christian, for the plaintiff, testified: Am a collector of rents for C. J. Hunter. Collected the rent for 794-96 Paulson Street East, on March 19, 1919, up to October 20. The defendant in this case made no demand on our office for the rentals of the property. In April, 1920, he made demand on me for the rent; and I went to see him, and he said he did not collect it. He said he owned the back; and I said, “ Are you sure about that ? ” and he said “ Yes.” Subsequently to that he made no demands on me for the rent. After the tenants paid Oreen I demanded the rent. Am familiar with this property and have been a real-estate agent in Savannah for four years. Consider myself an expert and qualified to pass on real-estate values in Savannah. I consider the value of the lot 133 Johnston ward and improvements about $3700. The value of the northern half $2500 and the southern half $1200.— Cross-examination: Lester Green claimed to own all the property, and when I had a talk with him Clark & Clark claimed to own the property. When their.tenants refused to pay, I found that they paid to Green, and I went to find him, and he admitted that he did it. He said he owned the property, and I asked him why he did not collect the rent before, and he said he had to wait a year. Don’t know why he should have waited a year.
Eebecca Singleton, for plaintiff, testified, testified: I live on Hall street, No. 789, live behind the house that Lester Green lives in next door to Sarah Turner. I do not recall when Lester Green moved into the house where I live. I recall his collecting rent from me in April, 1920. That was the first time he collected and the last time. I do not know that he made any claim on me for the house. I was not at home.
Sarah Turner, for plaintiff, testified: I live in Hall street Lane East, behind Lester Green, and next to Eebecca Singleton. Eecall Lester Green collecting rent from me the first Sunday in April, 1920. He had not collected rent from me before. He did not ask me for the house. I paid my rent to Lockwood.
Lester Green for himself testified: I am the defendant in this case. About April 1, 1920, 1 asked the people staying in the house in the rear not to pay the rent to the collector. They paid me one month’s rent. I remember when you (counsel for plaintiff) came to my house and asked me to execute a quitclaim deed to the southern half, which I refused to do. When I bought the house I thought it was worth $1800. I did not pay $2600 for it. I paid $2600 under the impression that I was buying the whole lot, $800 for that in the lane and $1800 for the house in front. That would maleé $2600. I signed the sale ticket, to cover 797 Wolff street. I do not know whether this agreement for title was meant to cover the same property. If I signed it, it meant the same. It meant to be the same property. Collected rent in April from Sarah Turner and Eebecca Singleton. Both came to my house and paid me for the rent in person. 1 do not know which one paid to my daughter. I do not know Matilda Lockwood. She did not pay any rent. I did not have any dealings with her. She was a peace-broker in the lane, so far as I know about. She makes confusion. I did not have any dealings with her. I went in March to collect rents. When I first noticed I went and tried to collect rent. Q. You went as soon as you noticed it — within a few hours? A. It was in March. Q. As soon as you noticed it you went and tried to collect the rent ? A. As soon as I noticed —■ I knew I bought the lot. I bought it in March. I knew I had bought the lot.
Cross-examination: George Jacobs took me to show me the .property. He was a special agent of the Stillwell Realty Company. He showed me the entire lot and advised me to buy it, and carried me to Stillwell Realty Company’s office. Came back to the office with me. At the time the sale ticket was signed he was present. That paper called for 797 Wolff street — that was the number on the house. Subsequently they drew .up the bond for title. It was read over to me at the time it was signed, described lot 133 Johnston ward and improvements. Found out they were claiming I did not buy the lots when I went to get the returns from the rent collector. A man named Johnson collected the rent in the lane. ' Nobody mentioned to me anything about the 55 feet for a year after I tried to get a statement for the money collected. Immediately after the purchase I got the money from Coleman Johnson. That was the money for the house I am living in. I did not care for him to move. I wanted to turn over my account to help pay it. I let him continue to collect the rent on the rear part. It was in April, a year after, they claimed I was not entitled to the rent. Am now paying taxes on the entire property.
Redirect: I began collecting the rent on 797 Wolff street right away. Knew he was collecting the rent on the back houses after the sale. When I went to Mr. Christian he was collecting it. Mr. Christian came to me for information, and he went to Johnson. He told me that he was collecting the rent for Johnson, because he went to Johnson for information. I asked Johnson for rent in March, 1930. Did not ask him for rent on the front house. Did not say anything to him about the back house, as I intended to put it on my account: I told him that I did not care to collect that rent. He could collect that to keep me from paying percentage for collection.
Re-cross: When I went to buy the property from Mr. Williams, he delivered the bond for title and asked me if I would let Mr. King collect the rent for me, collect the rent for the house in the lane. I paid the installments direct to the Stillwell Realty Company.
Edward -E. Lovell Jr., for the defendant, testified: I am in the city assessors’ office, and am fairly well acquainted with the value of property in Savannah. We try to get two thirds of the market value; that is the proportion it is assessed for taxes. They usually run at fifty per cent. The taxable value of the entire lot 133 Johnston ward and improvements — the lot is valued at $225 and improvements $1400; the northern half would be $125 for the lot and the improvements $850 for the year 1921. Eor 1920 the northern half $800; the lot $800; the lot was $100 and the improvements $700; the entire lot is worth $175 for 1920, and $1375 for improvements, making $1550. T have not personally seen the property, and do not know anything about the value of the sale.
Matilda Lockwood, for plaintiff, testified: I live at 795 Hall street East, right behind this naan’s house. I rent the house from Eebecca Singleton and Sarah Turner, and they leave the money for me .to pay the rent. I did not pay the rent to Lester Green. I paid the rent for Eebecca up to March. Green said not to pay the rent to the rent collector, and the collector came on Monday and I told him what Green said. After that I paid the rent to the owner of the house, and he told me to tell Eebecca and Sarah. I had a conversation with Green in the lane in April, 1920, and talked about his collecting the rent for the two back houses. He said he was just now trying to collect the rent to the two back houses; because he had not noticed before this time the deed called for the whole lot. I did not pay any rent to him.
The jury returned a verdict for the plaintiff. The defendant moved for a new trial on the .grounds: (1) that the verdict is coaitrary to the evidence, and without evidence to support it; (2)' that the verdict is decidedly and strongly against the weight of the evideaice; (3) that the verdict is contrary to Jaw and the principles of justice and equity. By amendment he added several grounds in which he complained that the verdict was contrary to certain instructions given lay the court to the jury. By another amendment the defendant complained that the court erred in allowing the plaintiff to testify as follows: "I gave the Stillwell Eealty Company written authority to sell that one half.” This testimony was objected to on the ground that the written authority given by the plaintiff for. the sale of this property was the best evidence of the authority given to the Stillwell Eealty Company; ■which objection was overruled. The defendant further alleged that the court erred in allowing the plaintiff to testify as follows: “I only intended to convey the northern half of lot 133 Johnston ward, and did not intend to convey the whole lot, because it was cut in half when I built on the northern half; after dividing it I built two houses there, 197, 196, and 194 is the number of the house in the lane, and 797 is the front number on Wolff street. I sold these two houses to Clark & Clark.” Defendant objected to this testimony on the ground that the actual written agreement for conveyance was the best evidence of what the parties intended to convey. The court overruled this objection, and error was assigned on this ruling.
The court overruled the motion for new trial, and error was assigned on this judgment.
The defendant did not file his answer at the appearance term; and the case was marked in default. At the trial term the defendant filed his motion to open the default and for permission to file his answer. The plaintiff moved to dismiss the motion to open, on various grounds. This was overruled; to which ruling the plaintiff excepted. On January 8, 1921, Judge Meldrim, after hearing the evidence, passed an order opening the default and requiring the defendant to pay all costs to date, including the costs of the motion, and requiring him instanter to file a meritorious defense. To this ruling, and to the judgment overruling the motion to dismiss the motion to open the default, the plaintiff filed his exceptions pendente lite; and in his cross-bill of exceptions in this case he assigned error thereon.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
