Summary
finding a mutual mistake which authorized reformation when the record showed both parties intended conveyance of a lot with a home on it instead of an empty lot because the grantor told her attorney that she wanted to convey the lot with the home to the grantee, the grantee and grantor told family members she transferred the lot with the home to the grantee, the grantee and grantor discussed the boundaries of the lot, and the grantee cleared the area for further construction
Summary of this case from Rome Granite, Inc. v. Pinnacle Bank.Opinion
For majority opinion of the court, see 473 S.E.2d 760.
CARLEY, Justice, dissenting.
Mrs. Cordelia Simmons owned a tract of land, a portion of which she conveyed in 1968 and the remaining portion of which she retained as her home place. In 1988, Mrs. Simmons executed a deed which named as grantee her grandson, Enos Curry (Grandson). According to its legal description, this deed did not convey Mrs. Simmons' home place. Instead, the deed purported to convey to Grandson the adjoining property which Mrs. Simmons had conveyed in 1968. Thereafter, Grandson constructed a building which was partially on Mrs. Simmons' home place and partially on the adjoining property. Mrs. Simmons continued to occupy her home place until she was declared incompetent. Her son, James Curry, (Son) was named as guardian and, in his representative capacity, he brought an action for ejectment and writ of possession, seeking to oust Grandson from Mrs. Simmons' home place. Grandson counterclaimed, seeking to have the legal description in Mrs. Simmons' 1988 deed reformed so as to convey to Grandson the home place property. After a bench trial, judgment was entered in favor of Son and against Grandson. On appeal, the majority reverses, concluding "that the error in the deed describing a lot that the grantor had already conveyed was a mistake common to both parties." In my opinion, the trial court, sitting as the trier of fact, was authorized to find that the legal description in the 1988 deed was not a mutual mistake which can be reformed in equity. Accordingly, I believe that the majority erroneously substitutes its findings for those of the trial court and I must, therefore, respectfully dissent.
The burden was on Grandson to prove that the legal description in the 1988 deed was a mutual mistake as between himself and Mrs. Simmons. He could not meet this burden by a mere preponderance of the evidence, but only with "clear, unequivocal, and decisive" evidence. OCGA § 23-2-21(c); Carroll v. Craig, 214 Ga. 257, 261(5), 104 S.E.2d 215 (1958). In determining whether the judgment in this case is erroneous, it is immaterial that there might be "clear, unequivocal, and decisive" evidence which would authorize a finding in favor of Grandson. Since the judgment for Son was entered after a bench trial, it can be reversed only if the "clear, unequivocal, and decisive" evidence demanded a judgment in favor of Grandson. The trial court's "findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witness. [Cit.]" Bell v. Cronic, 248 Ga. 457, 459(2), 283 S.E.2d 476 (1981). "Factual findings and credibility determinations by the trial court will be upheld on appeal if there appears in the record any evidence to support them. [Cit.]" Dudley v. Snead, 250 Ga. 804-805, 301 S.E.2d 480 (1983).
In reversing the judgment in this case, the majority places great emphasis upon the purported instructions given by Mrs. Simmons to "her attorney to prepare a deed conveying the home place lot to her [G]randson." However, the only evidence of these purported instructions is Grandson's own testimony. Mrs. Simmons was not a witness in the case and the attorney is dead. Although the other witness to the 1988 deed was alive and apparently could have been subpoenaed, she was not called to testify on Grandson's behalf. There is some question whether Grandson's testimony as to Mrs. Simmons' instructions to her attorney constitutes probative evidence or non-probative hearsay. However, even assuming that his testimony is probative evidence, it certainly is not "clear, unequivocal, and decisive" evidence which demands a finding that Mrs. Simmons had so instructed her attorney. Grandson's failure to call the witness to the 1988 deed authorized the trial court to presume that Son's claims for ejectment and writ of possession were "well founded." OCGA § 24-4-22. Moreover,
[w]hen a party relies on his own testimony in order to prevail, he has no just ground of complaint if, after scanning it carefully, without indulging any presumption in his favor, or supplying any gaps appearing therein, a court viewing it as a whole reaches the conclusion that it is insufficient to make out his case. [Cits.]
Stepp v. Stepp, 195 Ga. 595, 597, 25 S.E.2d 6 (1943).
The majority also indicates that, shortly after execution of the deed, Mrs. "Simmons told her granddaughter that she had deeded her home and land behind it to her [G]randson." (Emphasis supplied.) The actual testimony is that Mrs. Simmons stated to her granddaughter that she had "given" her home place to Grandson. Again, assuming without deciding that this testimony as to an out-of-court statement attributed to Mrs. Simmons is not merely non-probative hearsay, the issue for resolution is not whether Mrs. Simmons had "given" her home place to Grandson, but whether the 1988 deed mistakenly described the adjoining property, rather than Mrs. Simmons' home place, as the object of the conveyance. The testimony of Mrs. Simmons' granddaughter certainly would not constitute "clear, unequivocal, and decisive" evidence of such a mistake. It was the trial court's responsibility to determine the credibility of this testimony and to construe it in conjunction with all of the other evidence in the case.
Pretermitting any consideration of what the evidence would have authorized the trial court to find, what the trial court ultimately did find was that Mrs. Simmons "intended to convey the exact property described" in the 1988 deed. If she intended to convey that "exact" property, the 1988 deed certainly cannot be reformed so as to evidence an unintended conveyance of her home place. Notwithstanding the trial court's finding, the majority concludes there is no evidence of Mrs. Simmons' intent to convey the adjoining property, "since she had previously conveyed the property." However, the mere fact that Mrs. Simmons had conveyed in 1968 the property described in her 1988 deed to Grandson does not demand a finding that it was not her intent to convey that "exact" property to him. She simply may have been mistaken as to her continued ownership of the property which she previously had conveyed in 1968 and which was described in the 1988 deed. If Mrs. Simmons was so mistaken, there can be no reformation, since she did not intend to convey her home place, but intended to convey property which was no longer hers to convey. Whether Mrs. Simmons was mistaken as to her ownership of the described tract is an entirely different issue from whether she was mistaken as to the legal description of her home place property. Here, there is some evidence that Mrs. Simmons was confused as to the extent of her real estate holdings. See Terry v. Fickett, 199 Ga. 30, 38(8), 33 S.E.2d 163 (1945). Moreover, the post-deed conduct of Mrs. Simmons is consistent with her intent that the adjoining property, rather than her home place property, was the object of the 1988 deed. After her execution of the 1988 deed, Mrs. Simmons continued to live on her home place property. If she had intended to convey her home place but continue to live there, the 1988 deed presumably would have reserved a life estate for her. The deed did not contain such a reservation. If, on the other hand, she had intended to convey the adjoining property in the mistaken belief that she still owned it and also intended to allow Grandson to use her home place while she retained title thereto, she would have deeded him the adjoining property and would not have objected when he constructed a building partially on both parcels. The evidence authorized the trial court to find that this is what she did do. The continuing post-deed possession of the home place by Mrs. Simmons
may not be inconsistent with the fact of a complete gift from [her] to [her Grand]son; but it was for the [trier of fact] to decide whether or not this possession of [Mrs. Simmons] was a possession for the [Grand]son.
Hansell v. Bryan, 19 Ga. 167, 170(2) (1855).
Here, the trial court, as the trier of fact, was authorized to find that Grandson did not meet his burden of showing a mutual mistake in the legal description of the 1988 deed by "clear, unequivocal, and decisive" evidence and that Mrs. Simmons had deeded Grandson the adjoining parcel in the mistaken belief that she owned that property. The trial court is the "final arbiter of the weight of the evidence and the credibility of witnesses. The judge's findings of fact will not be disturbed on appeal as long as there is any evidence to support those findings." Hughes v. Cobb County, 264 Ga. 128, 130(1), 441 S.E.2d 406 (1994). This court is not authorized and, heretofore, has not been " 'inclined to substitute [its] judgment on the evidence for the judgment of the trial court unless the record discloses absolutely no evidence in support of the finding by the trial court.' " Wilkins v. Wilkins, 234 Ga. 404, 405, 216 S.E.2d 302 (1975). In my opinion, the majority deviates from this long-standing principle by reversing the judgment in this case and I must, therefore, dissent.
I am authorized to state that Justice THOMPSON joins in this dissent.