1. The motion to dismiss the writ of error is denied.
2. An objection to a ruling on a motion to strike an amendment to the defendant's answer is not a proper ground of a motion for new trial.
3-7. No error is shown in the amended grounds of the motion for new trial dealt with in divisions 3 through 7.
8. The documentary evidence excluded, of which complaint is made as shown in division 8, should have been admitted.
9. The evidence on the trial of this case was not clear, unequivocal, and decisive as to any mutual mistake of the parties, and will not support a verdict and decree for the reformation of a deed.
No. 15990. NOVEMBER 12, 1947. REHEARING DENIED DECEMBER 2, 1947. The controversy between the parties in this case has previously been before this court. Cantrell v. Kaylor,201 Ga. 406 *Page 158 (39 S.E.2d 657). In the former case this court held that the plaintiff in error in this case, Cantrell, was entitled to the free and unobstructed use of a private alley adjacent to his property, which was mentioned in his deed with the statement that it was to remain forever open.
Thereafter, the defendants, Julian and Fletcher Kaylor, filed an amendment to their answer, alleging: Julian Kaylor and J. L. Garrett are the duly qualified and acting administrators de bonis non with the will annexed of the estate of J. L. Kaylor, deceased. The administrators caused the property of the estate to be divided into lots, as shown by a recorded plat, and in order to provide ingress and egress to lot 8, a private driveway, for the sole benefit and use of the purchaser of lot 8, was set apart between lots 5 and 6. On the day immediately preceding the sale of the Kaylor Estate property, J. W. Griffin came to Julian Kaylor to inquire relative to the use of the driveway by the purchasers of lots 5 and 6, and Julian Kaylor informed him that the private driveway was for the sole and exclusive use of the purchaser of lot 8, and that the purchaser of lot 6 would not have any use of the driveway. On the following day, after full information, notice, and knowledge, J. W. Griffin bid off lot 6, and subsequently caused the deed to such tract to be made to the plaintiff, W. C. Cantrell. At the time of the sale it was announced and made known to other prospective purchasers that the purchasers of lots 5 and 6 would have no rights in the private driveway. There is a described triangular tract of land which was not sold, and no right, title, or interest in it was ever acquired by Cantrell; nor was there any intention to grant any right of egress and ingress over this tract. In drawing the administrators' deed from them to Cantrell, there was a mutual mistake in the language used; it was never the intention of any of the parties to the deed that Cantrell would acquire any permission to use the private driveway leading to lot 8, or the described triangular tract; it was mutually intended that the deed should express the fact that Cantrell was excluded from any right to use the private driveway and the triangular tract. The young lady who drew the deed did not express the intention of both parties to make such specific exclusion. There was a mutual mistake by the parties as to the legal construction of the language *Page 159 used in the instrument to express the true agreement of both parties, and there was a defective execution of the intent of the parties. The respondents, Julian and Fletcher Kaylor, purchased lot 8, and they own the private driveway.
The prayers of the amendment were: that process issue, directed to J. L. Garrett and Julian Kaylor, as administrators, requiring them to show cause why they should not be made parties to the suit; that the deed between the administrators and Cantrell be reformed by adding stated language, which would exclude Cantrell from using the private driveway and the triangular tract described; that Cantrell be enjoined and restrained from interfering with the use of the driveway by the respondents; and for other relief.
The court ordered that the amendment be filed. The administrators were directed to show cause on November 2, 1946, why they should not be made parties to the suit. Cantrell was temporarily enjoined as prayed. On November 2, 1946, the court passed an order reciting that "no cause being shown and no objections being filed by said administrators," it was ordered that they be made parties to the cause in order to plead properly as required by statute. The record does not disclose that any pleadings were filed by the administrators.
On the trial, the evidence was substantially as follows: W. C. Cantrell, the plaintiff, testified: He was not present when the deed was executed. J. L. Garrett brought it to him at his office on June 2, 1942. He was present at the sale. There was no public statement made at the sale reserving the private driveway. He did not bid on the property at the public sale. After the sale he went to see the property he bought. Julian Kaylor pointed out the lines to him, and Kaylor did not say that he did not have the right to the driveway and the triangular lot. He let Julian Kaylor use the property free of rent for four years, and while using the lot Kaylor used the alley. In answer to the question, "Thirty minutes after this sale, before any difference came up, Mr. Jeff Kaylor showed you the line down there on this property and pointed out the property you bought, and told you in that conversation that you couldn't get any rights to the private driveway?" the witness replied: "He might have told me something when I was talking to him about the alley. It wasn't 30 minutes after the sale at the home place." *Page 160
T. M. Hamrick testified for the defendants: He was the auctioneer who sold the property of the Kaylor Estate. When he started to sell the property, he made the statement which the administrators told him to make, that the alley was to stay open for the sole benefit of the purchaser of lot 8. The affidavit which he formerly made, stating that no announcement was made at the sale in regard to the private way, was untrue.
Jeff Kaylor testified for the defendants: He attended the sale of the Kaylor Estate property. The auctioneer announced at the sale that the private driveway was specially for lot 8. After the sale Mr. Cantrell asked the witness whether he could use the private alley. The witness replied, "Yes, you can use it, it will be all right." Cantrell said, "I want to use it if I can, until I can go in through a private way across the sidewalk." The witness told him, "You know that is a private right of way for lot 8 exclusively." This conversation was thirty minutes after the sale.
Julian Kaylor testified for the defendants: He was one of the administrators of his father's estate. On the day of the sale when they sold lot 8, the auctioneer made the statement that the private driveway was left for the use of the back lot 8. The witness and Fletcher Kaylor bought lot 8, and their deed is introduced in evidence. When he had the deed executed, it was the intention of the administrators to make tract 8 have the private driveway for its exclusive use. He gave the direction when the deed was executed that the deed should stipulate that the private way was to be exclusively for his own use. It was the intention of the administrators that the purchasers of lots 5 and 6 could not close up the driveway, that it was to belong exclusively to lot 8, and that lots 5 and 6 were not to have any rights of ingress or egress over it. He thinks that the deed to Mr. Cantrell was dictated by Mr. Buford Boykin (one of the counsel for the defendants). Mr. Cantrell was not present when the deed was written, and the witness was not there.
Mrs. Ralph Wester testified for the defendants: She typed the deeds from the administrators to Cantrell and from the administrators to the Kaylors. At the time the deeds were drawn, the information conveyed to her was that the driveway was intended for the use of lot 8 only. She undertook to express that *Page 161 in the deed. She was drafting the deeds for the administrators. None of the parties were there when the deeds were written. Mr. Boykin gave her the information as to the grantors and grantees, and she got the description from the newspaper advertisement and plat. The administrators came and signed the deeds when they were prepared.
Fletcher Kaylor testified for the defendants that an announcement was made at the sale that the driveway was to be for the exclusive use of the purchaser of lot 8.
J. L. Garrett testified for the defendants: He was one of the administrators of the Kaylor Estate. After the property was sold he executed a deed. It was their intention in executing the deed to Cantrell to reserve the driveway. It was not their intention to convey any title in the driveway to the purchasers of lots 5 and 6. That was expressly stated to Mrs. Wester when the deed was made. The witness stated: "The intention was to keep this alley open for this lot back here (indicating), so that whoever bought number 8 had a way to go in and out. It was to be kept open for the benefit of the man number 8 belonged to. . . Whether I had no intention to prevent anybody from using that wanted to use it, wasn't nothing said about that. It was a driveway for this lot back here. Whether there was no intention of preventing anybody from using it that wanted to, nothing said about that at that particular time. . . When I made the deed I undertook to convey to the purchaser of lot number 8 this driveway."
J. W. Griffin testified for the plaintiff: He is familiar with the tract of land he bid in for Mr. Cantrell, the Kaylor lot 6. His understanding was that the driveway was to be used by the purchaser of lot 8 and the purchasers of lots 5 and 6.
W. C. Cantrell, plaintiff, recalled, testified that he would not have bought the property if the announcement had been made that the purchasers of lots 5 and 6 would not have the privilege of using the private driveway.
The deeds of Cantrell and Julian and Fletcher Kaylor were introduced in evidence.
The jury found a verdict in favor of the defendants, and the court entered a decree reforming the deed from the administrators to Cantrell, "so as to exclude any right, title, interest, or *Page 162 usage by egress and ingress in and to said private driveway to the said W. C. Cantrell."
Cantrell filed his motion for new trial on the general grounds, and subsequently amended it by adding several special grounds. The exception is to the overruling of the motion for new trial as amended. 1. A motion was made to dismiss the bill of exceptions in this case, on the contention that J. L. Garrett and Julian Kaylor, as administrators de bonis non with the will annexed of the estate of J. L. Kaylor, are necessary parties and interested in sustaining the judgment of the lower court, and will be affected by any judgment rendered in the case by the Supreme Court, and that they were not made parties to the bill of exceptions.
Subsequently the plaintiff in error filed an amendment to his bill of exceptions and moved this court to make the administrators parties to the bill of exceptions. The amendment was accompanied by a certificate of attorney for the plaintiff in error, stating that attorneys for the defendants in error and the administrators had been served with the amendment by mailing each a copy thereof.
The administrators filed objections to being made parties to the case in this court, on the grounds that they were not parties to the motion for new trial filed by the plaintiff in error in the lower court; they were not served with a copy of such motion; they were not designated as defendants in error in the bill of exceptions; there was no service as provided by law; they have not waived service of the bill of exceptions; it is now too late to make parties those who were not properly made parties in the motion for new trial and the bill of exceptions. The administrators prayed that the prayers of the plaintiff in error seeking to make them parties be denied. They cite Ray v.Hardman, 146 Ga. 718 (92 S.E. 211), in support of their objections.
The administrators, as such, did not file any pleadings in the court below, and in the absence of proper pleadings by the administrators, it is impossible for this court to determine their interest, if any, in the litigation. *Page 163
It does not appear that the administrators were ever served with a copy of the bill of exceptions in accordance with the Code, § 6-911, nor is there any waiver of service. If they are to be considered as defendants in error, they were not properly so made. The plaintiff in error, in asking that they be made parties, did not name them as defendants in error, but merely asked that they be made parties. This follows the procedure by the defendants in error in their amendment filed in the lower court, seeking reformation of the deed made by the administrators to the plaintiff in error, in which amendment they prayed that process issue, directed to the administrators, "requiring them to show cause before this court at such time and place as to the court may seem meet and proper why they should not be made parties to this suit." The order making the administrators parties adjudged that "they are hereby made parties to the aforesaid cause in order to plead properly as required by statute."
The amendment of the defendant in error might be construed as seeking relief against the administrators in their representative capacity, since the deed made by them was sought to be reformed. The administrators by proper pleadings could have contended that the deed as made was correct, and in that event their interest in the litigation in this court could be that of plaintiffs in error. Parties plaintiff in error can be made by amendment to the bill of exceptions, and service on them is not necessary. Sharp v. Findley, 71 Ga. 655 (6); Ramey v. O'Byrne, 121 Ga. 518,519 (49 S.E. 595).
Under all the facts of the case, the administrators were not necessary parties in this court, and a failure to name them as parties in the original bill of exceptions, and to serve them with notice of such bill, will not cause a dismissal of the writ of error. The trial court decreed that the deed from the administrators to Cantrell be reformed by the addition of certain language; but no judgment was rendered against the administrators. It does not appear that the estate which they represent is concerned with the question as to which of the grantees in the administrators' deeds, both executed on the same date, should have the right to use the private way mentioned in both deeds. Under these circumstances, it does not appear that the administrators were necessary parties in this court, and the motion to dismiss the writ of error is denied. *Page 164
2. The plaintiff in error attempts to invoke a ruling on the refusal of the trial court, on motion to strike, to dismiss the amendment of the defendants in error, seeking reformation of the deed of the plaintiff in error. It was urged that the court should strike the amendment, because it was insufficient in law to reform an instrument, and because the administrators, who were grantors in the deed which it is sought to reform, were not made either parties plaintiff or parties defendant, and were therefore not proper parties. No exception was taken to the refusal of the court to strike this amendment. The plaintiff in error seeks to have this action of the court reviewed by a special ground of the amendment to his motion for new trial. Such a ruling is not a proper ground of a motion for new trial. Mitchell v. Masury,132 Ga. 361 (9) (64 S.E. 275); Carswell v. Smith,145 Ga. 589 (2) (89 S.E. 698); Battle v. Holmes, 146 Ga. 245 (91 S.E. 32).
Since the ruling of the trial court on the motion to strike stands unexpected to, no question can now be made as to the sufficiency of the amendment of the defendants in error to state a cause of action for the reformation of the deed of the plaintiff in error.
3. Ground 1 of the amended motion for new trial assigns error on the failure of the court to charge the jury that, when a road has been used as a private way for as much as one year, the owner of the land over which it passes may not close it up without first giving the common users of the way 30 days' notice in writing so that they may take steps to have it made permanent.
The only issue in the case was whether or not the deed from the administrators to Cantrell should be reformed on the ground of a mutual mistake between the parties. The charge set out in this ground was not germane to such issue, and the court did not err in failing so to charge.
4. Special ground 2 contends that the court erred in failing to charge the jury as follows: "A deed conveying a described parcel of land `with appurtenances' conveys to the grantee as appurtenant to the land the right to the free and unobstructed use and enjoyment of an alley adjoining the property, which the grantor had laid out and set apart for such use, and the fee to which was at the time of the conveyance in the grantor."
This charge was not relevant to the issue made by the amendment seeking reformation of the deed of the plaintiff in error, and the court did not err in failing to give this charge. *Page 165
5. Special ground 3 assigns error on the failure to charge as follows: "In order to reform a deed by parole proof, the evidence should make out a case so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement." No request to charge in the exact language set out in this ground was made; and the court in the general charge sufficiently instructed the jury on the evidence necessary to authorize the reformation of a deed.
6. Special ground 4 contends that the court erred in failing to charge the jury certain language dealing with the evidence for the plaintiff in error. No request was made to charge such language; and it was not erroneous to fail so to charge.
7. The charge complained of in special ground 5 was proper under the former decision of this court and the evidence in the case, and was not harmful to the plaintiff in error.
8. Special ground 7 contends that the court erred in the trial of the case in refusing to admit in evidence a check, dated June 12, 1942, to the administrators, in payment for the property purchased by the plaintiff in error, the check being offered for the purpose of showing that the grantors in the deed had the deed in their possession for a month before delivery, the deed having been dated May 5, 1942.
The check should have been admitted in evidence for such value as it might have, as tending to show that the administrators had possession of the deed for a period of time prior to delivery.
9. In a consideration of the general grounds of the motion for new trial we also consider ground 8 of the amended motion, since such ground is an amplification of the general grounds.
"Equity will not reform a written contract unless the mistake is alleged and proved to be the mistake of both parties."Quiggle v. Vining, 125 Ga. 98 (54 S.E. 74). The evidence in this case wholly fails to show that it was ever the intention of the plaintiff in error that the driveway in dispute should be excluded from his use. The evidence for the defendants in error showed that an announcement was made at the public sale that the driveway was to be for the exclusive use of the purchaser of lot 8. While Cantrell stated that he was present at the sale, he contended that no public statement was made reserving the private driveway. *Page 166 Further, it is shown that Cantrell did not bid in the property himself, but it was bid in for him by someone else. One of the witnesses for the defendants in error related a conversation with Cantrell after the sale, in which the witness stated that the driveway was for lot 8 exclusively, but in the same conversation he told Cantrell that he could use the driveway.
Julian Kaylor, one of the administrators (and also one of the defendants in error), stated that it was the intention of the administrators to reserve the private driveway for the exclusive use of lot 8. J. L. Garrett, the other administrator, testified that it was the administrators' intention to convey the title to the driveway to the purchaser of lot 8, but he stated that nothing was said about preventing anybody else from using it.
Since the evidence for the defendants in error as to the intention of the administrators to reserve the driveway exclusively for the use of the purchaser of lot 8 was uncertain, and there was no evidence that it was the understanding of the plaintiff in error that he would be excluded from the use of the driveway, the evidence was not clear, unequivocal, and decisive as to any mutual mistake of the parties, and does not support the verdict and decree for reformation of the deed so as to exclude the plaintiff in error from using the private driveway. Reese v. Wyman, 9 Ga. 430 (1); Adair v. Adair, 38 Ga. 46 (2);Newberry v. McCook, 146 Ga. 679 (1) (92 S.E. 67);Arlington Realty Co. v. Broome, 166 Ga. 320 (5) (143 S.E. 375).
Judgment reversed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.