APRIL 14, 1943.
Complaint for land. Before Judge Porter. Walker superior court. December 12, 1942.
Maddox Griffin, for plaintiffs. Shaw Shaw, for defendant.
The plaintiffs sued as remaindermen to recover undivided interests in land after death of the life-tenant, relying on a deed which by its terms plainly vested in them the remainder interests claimed. The defendant answered, and contended that the deed had been so reformed by an equitable decree as to vest the fee-simple title in the person originally named as life-tenant, from whom he purchased. Held, that the so-called decree of reformation was void, for the reason that it was based upon a petition that did not state a cause of action for reformation, and did not contain enough to amend by as related to such relief. The evidence demanded a verdict for the plaintiffs, and their motion for new trial after verdict for the defendant should have been sustained.
No. 14445. APRIL 14, 1943.
W. L. Deck, Mrs. Mable T. Anderson, C. A. Deck, and J. C. Deck brought suit for land against Joe Shields. The plaintiffs alleged that they each owned a one-sixth undivided interest in the land sued for, and claimed under a deed executed to Alice A. Deck, their mother, by Laura F. Jackson on October 28, 1887. This deed conveyed the land in dispute, with other lands, "unto the said Alice Deck for and during her natural life, with remainder over at her decease to the heirs of her body." The plaintiffs' mother, the life-tenant, died in 1940, leaving these plaintiffs, their sister, Nettie Deck, and Cecil Wellborn, son of a deceased sister, as the remaindermen under said deed. The plaintiffs alleged that they and the defendants claim title under a common owner, in that the defendant claims title under the same deed from Laura F. Jackson as above described, and a warranty deed to himself from Alice A. Deck, executed on June 7, 1916. The defendant filed an answer in which he alleged that the deed from Laura F. Jackson to Alice A. Deck had been so reformed by a decree of the superior court of Walker County at the February term, 1890, as to place in Alice A. Deck had been so reformed by a decree of the described in said deed, including the land sued for; and that "said decree was valid and binding upon the plaintiffs in this cause and divested them, and each of them, of each and all remainder interest in said lands."
After introduction of evidence on both sides, the judge directed a verdict in favor of the defendant. The plaintiffs moved for a new trial on the general grounds, and on two special grounds added by amendment, one complaining that the court erred in admitting in evidence the decree referred to in the defendant's answer, and the other assigning error on the direction of the verdict. One of the objections to the decree was there were no allegations of fact to support it. The motion for new trial was overruled, and the plaintiffs excepted.
On the trial C. A. Deck, one of the plaintiffs, testified, that W. L. Deck, Nettie Deck, Mable Deck [T.] Anderson, J. C. Deck, and himself were his mother's children who survived her; that "Cecil Wellborn's mother was my sister, she died in 1906, leaving surviving her Cecil Wellborn, her only child;" and that "I was born July 21, 1889, and my brother, J. C. Deck, is seven years younger than I am." It thus appeared that the plaintiff J. C. Deck was not born until several years after the decree referred to in the answer was entered.
The plaintiffs introduced in evidence the deed from Laura F. Jackson to Alice A. Deck, referred to in the petition, conveying to the grantee described lands in Walker County, including the tract now sued for, "for and during her natural life, with remainder over at her decease to the heirs of her body."
The defendant introduced "the entire record" in the case of Peter S. Anderson and Alice A. Deck v. Laura F. Jackson and others, February term, 1889, of the superior court of Walker County. The petition in the proceeding just mentioned was addressed: "To the Honorable John W. Maddox, judge of the superior court and exercising chancery jurisdiction therein," and alleged the following:
On March 4, 1871, Peter S. Anderson conveyed to his daughter Alice A. Deck described land in Whitfield County, "intending to convey to her only a life-estate, with remainder over to her children. Whether the deed does so convey said lots petitioners are informed there is doubt. Copy of said deed is hereto appended marked `A' as an exhibit. Previously he had conveyed to another of his daughters, Laura F. Jackson in fee" described lands in Walker County, including the tract here involved, which deed "conveys the fee of such parts of said lots as said Peter S. then owned. The deed is hereto appended as exhibit `B.' Afterwards . . the said two daughters of said Peter S. Anderson, with his consent and approval, swapped their respective lands, said Alice A. conveying the said two Whitfield County lots to said Laura F. Jackson in fee, and the said Laura F. conveying the said Walker County lots to said Alice A. making a life-estate to her, with remainder over to her children, intending that all the children of said Alice A. born and to be born should share in said remainder interest. This was in accordance with the wishes of said Peter S.
"Petitioners say that the said Walker County lands are much more valuable than the Whitfield County lands, say by seven hundred dollars. A railroad has since been constructed through the said Walker County lands, rendering them still more valuable. On said lots 59 and 60 . . along said railroad there are sites suitable for school buildings, stores, and residences, and there is a demand for said sites, if the title could be relieved from said remainder interest. The sale of a portion of said lot would make the residue of that lot and said lot 60 much more valuable than it will otherwise be, and a portion of the proceeds of said sales equal to the present value of the remainder in the portion so sold would be invested in improvements on the portion not sold, so as to greatly enhance the value of the said remaining portions. . .
"The portion of said lot 59 which could be sold as before stated is the south half of said lot, and that on lot 60 is about one acre lying south of the public road known as the Cove Road. The children of said Alice A. are all minors, and their names are Ida B. Wellborn, aged 17 years, Peter S., Willie, George D., Nettie, and Mable Deck, all under 14 years old.
"Petitioners pray that these children and said Laura F. Jackson be made parties to this proceeding, and that a guardian or guardians ad litem for said minors be appointed by the court to represent their interests. They pray that the deed from petitioner to said Alice A., conveying to her the Whitfield County lands, and the deed from Alice A. to Laura F. be so reformed, if necessary, as to create a fee-simple title to said lands in said Laura F. And that the deed from Laura F. Jackson to Alice A. Deck, conveying the Walker County lands aforesaid, be so reformed as to create a life-estate to all said lands in said Alice A., with remainder to her children and their representatives if any be dead at the termination of the life-estate, except to the south half of lot 59 and all of lot 60 south of the Cove Road, and that the titles to the last two named parts of lots vest absolutely in said Alice A. Deck; and that said trade be ratified and confirmed."
Laura F. Jackson acknowledged service of the petition on February 1, 1889, and the other defendants were personally served by the sheriff on the same day, according to entries on the petition. The husband of Ida B. Wellborn was appointed guardian ad litem for her, accepted the appointment and answered, agreeing that "the deeds be reformed as prayed."
Chester (C. A.) Deck was born on July 21, 1889, while the equitable proceeding was pending; and on December 4, 1889, the judge ordered that he be made a party to the proceeding, and that "service be perfected upon said minor according to law." On January 27, 1890, the sheriff "served Chester Deck, an infant, by leaving a copy of the petition for said minor with his father and mother." On November 4, 1889, the judge appointed Jacob Deck, father of the minor children, guardian for all of them except Ida B. Wellborn. He accepted the appointment, and filed an answer in which he stated: "He is of opinion that in justice and equity the deeds should be reformed as prayed for, and he agrees that they be so reformed, . . and he consents as such guardian ad litem that a decree be so taken and had."
The following judgment and decree was entered:
"In Open Court. February Term, 1890. It appearing from the evidence, and the return of the sheriff and acknowledgments of service, that all defendants, minor and adult, have been legally served; and it further appearing to the court, from the answers of the guardians ad litem for the minor defendants, that said guardians ad litem have accepted their appointments as such guardians ad litem, it is therefore adjudged that all defendants have been properly and legally served and that the guardians ad litem have accepted their appointments as such; and said guardians having answered that after investigation they are satisfied that the allegations in the petition are correct, and that it is to the interest of the parties that the deeds be reformed, and title vest as prayed for in this petition. . . It is further considered and adjudged, that the deed . . executed by said Laura F. Jackson on the 28th day of October, 1887, conveying to said Alice A. Deck a life-estate, and her children in remainder in fee in [described lands] be reformed as prayed for; that is to say, that the deed be so reformed as to convey to said Alice A. Deck the entire interest and fee-simple title to the south half of said lot of land No. 59, and also to all of said lot No. 60 which lies south of the Cove Road, and that said parcels of said lots be relieved from the remainder interests and estate created therein by said deed, and that the said Alice A. Deck be and she is hereby empowered and authorized to convey to any purchaser a fee-simple title to any and every portion of said parts of said lots, as fully as if said deed had originally conveyed to her a fee-simple title therein."
The plaintiffs sued as remaindermen to recover undivided interests in land, after death of the life-tenant. They relied on a deed which unquestionably vested in them the remainder interests as alleged; but the defendant answered and contended that the deed had been reformed by an equitable decree so as to vest the fee-simple title in the person originally named as life-tenant, from whom he purchased. The court admitted the decree in evidence over objection, and on the entire evidence directed a verdict in favor of the defendant. The plaintiffs' motion for a new trial was overruled, and they excepted.
The case turns upon validity or invalidity of the so-called decree of reformation. The plaintiffs contend, among other things, that this decree is void for the reason that there were no allegations of fact to support it; and this contention, we think, is well founded.
Reformation as applied to a contract is a remedy cognizable in equity for the purpose of correcting an instrument so as to make it express the true intention of the parties, where from some cause, such as fraud, accident, or mistake, it does not express such intention. The remedy is not available for the purpose of making a new and different contract for the parties, but is confined to establishment of the actual agreement. Code, §§ 37-202, 37-207, 37-208, 37-215. Such is the law at the present time, and it was the same at the time the decree here in question was rendered. Code of 1882, §§ 3117, 3124; Ligon v. Rogers, 12 Ga. 281; Wyche v. Greene, 16 Ga. 49; Marshall v. Drawhorn, 27 Ga. 275; Stricker v. Tinkham, 35 Ga. 176 (5) (89 Am. D. 280).
The petition on which the decree was based showed upon its face that the deed was made precisely as the parties intended, conveying a life-estate to Alice A. Deck, with remainder to her children; and there was no hint of fraud, accident, or mistake affecting its execution. Nor did the allegations themselves disclose any design to seek the relief of reformation. The petition not only failed to state a cause of action to reform the deed in question, but showed affirmatively that no such cause of action existed.
"When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings." Code, § 110-702. "If the pleadings are so defective that no legal judgment can be rendered thereon, the judgment will be arrested or set aside." § 110-704. "A judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form." § 110-705. "A void judgment may be attacked in any court and by any person. In all other cases judgments may not be impeached collaterally, but must be set aside by the court rendering them." § 110-701. "The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it." § 110-709. In view of these principles, it has been said that one of the tests in determining whether a judgment is absolutely void and subject to collateral attack is "whether, if the party attacking it had been a party thereto, a motion in arrest would have been sustained for defects appearing in the face of the pleadings, which could not have been aided by amendment or cured by verdict." Freeman v. Bank of LaFayette, 20 Ga. App. 334, 338 ( 93 S.E. 34).
"All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by." Code, § 81-1301. "A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by. The jurisdiction of the court may be shown and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration shall fail to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment." § 81-1302. This latter section was codified mainly from the decision in Ellison v. Georgia Railroad c. Co., 87 Ga. 691 ( 13 S.E. 809). In the opinion in that case it was said: "The declaration must show what the design of the pleader was, and that his design was such that, if filled out and completed, a cause of action might appear. . . There must be some trace of a particular cause of action in the declaration, in order that it may contain enough to amend by. And as the original cause must be adhered to, and no other substituted in its place, the trace furnished must be sufficiently plain and distinct to identify the particular cause of action to which the declaration points or refers. If it points to no one cause more than to any other, it will be too indefinite, and should be treated as nothing better than a blank." Whether the petition here under consideration might have been so amended as to make it a good application for sale of real estate of minors for reinvestment, the judgment as rendered was not one granting such relief, and therefore we are not concerned with any theory as to sale for reinvestment. The petition must be considered with reference to the relief that was granted thereon, namely, reformation; and clearly it did not contain enough to amend by, as related to such relief. This being true, the decree was void, and the deed creating the remainder interest remained in force. Williams v. Hollis, 19 Ga. 313 (3); Stanford v. Bradford, 45 Ga. 97; Wilson v. Stricker, 66 Ga. 575 (2,4); Sanner v. Sayne, 78 Ga. 467 (2) ( 3 S.E. 651); Harrell v. Parker, 186 Ga. 760 (2), 767 ( 198 S.E. 776); Rollins v. Personal Finance Co., 49 Ga. App. 365, 366 (2) ( 175 S.E. 609).
The decision in Ethridge v. Pitts, 152 Ga. 1 ( 108 S.E. 543), as to jurisdiction of a superior court to authorize guardians to sell lands, is inapplicable. As noted above, the decree here involved was not an order to sell the land. While the allegations themselves might have indicated that a sale of the remainder estate for the benefit of the remaindermen would be proposed, yet when we reach the prayers, we find that they asked only for the making of parties and for reformation; and no other relief was granted. Nor was the decree aided by the fact that the guardians ad litem for the remaindermen that were then in life accepted their appointments and agreed that the deed should be reformed as prayed. Neither the court nor the guardians ad litem had authority thus to do away with the remainder estate, under the guise of reformation, and without any consideration or benefit to the remaindermen. All of the remaindermen that were in esse at that time were minors, and no question as to consent by competent parties is involved.
The decree of reformation being void, the evidence demanded a verdict in favor of the plaintiffs; and their motion for a new trial after verdict for the defendant should have been sustained on the grounds taken. In this view, it is unnecessary to deal with or even to state the other questions that were presented.
Judgment reversed. All the Justices concur.