1. When necessary and proper allegations have been omitted from the bill of exceptions the same may be amended as a matter of right if such imperfections and omissions can be supplied from the transcript of the record.
2. The rule that courses and distances yield to fixed monuments is well established in this State. But where the vendor in the course of the sale is guilty of actual fraud in representing the boundary line or lines as well as the course and distance of any of such boundary line or lines of such city real-estate lot, if the buyer was fraudulently induced to buy a lot of less width or depth than the vendor represented it to be, the buyer would be entitled to a reduction of the purchase-money in proportion to the deficiency such line or lines bore to the line or lines bargained for.
3. When the petition is ambiguous and capable of two constructions, in the absence of demurrer the construction will be adopted which supports the verdict.
4. Verdicts, having the approval of the trial judge, will not be set aside as excessive on motion for new trial when there is evidence to support them, unless so excessive as to justify the inference of gross mistake or undue bias.
5. Parties to litigation have the right to support by proof allegations contained in their pleadings as laid, when no demurrer or motion to dismiss is interposed at the proper time, the sufficiency of the petition can not be raised for the first time on the motion for new trial.
6. The remaining assignments of error are without merit and the judgment of the trial court overruling the motion for new trial was not error.
DECIDED JUNE 18, 1947. This action, on two counts, was brought by Mrs. Lois H. Collier and her husband, C. Frank Collier against Mrs. Josephine Gledhill Halliburton to the August Term, 1945, of Bibb Superior Court. The parties will be referred to hereinafter as plaintiffs and defendants, unless otherwise designated.
The first count of the petition alleges in substance: that on August 19, 1944, the defendant conveyed to the petitioners by warranty deed, the following described property, "All that tract or parcel of land lying and being in the East Macon District of Bibb County, Georgia, now within the corporation limits of the City of Macon, and being a part of lot number one (1) in block one (1) according to a subdivision of lots `U' and `V' of the Dubois survey of the Woolfolk property, a plat of which subdivision is of *Page 317 record in the clerk's office of Bibb Superior Court in plat book four, folio 53; said lot being more particularly described as follows: beginning at the N.E. corner of the intersection of Main and Norris Streets and running thence in an easterly direction along the north side of Main Street a distance of 100 feet, more or less, to a brick wall; thence along said brick wall in a northerly direction a distance of 155 feet, more or less, to a 10 foot alley; thence along the line of said 10 foot alley in a westerly direction a distance of 24 feet, more or less, to Norris Street, thence along Norris Street in a southerly direction a distance of 163.2 feet, more or less, to Main Street and the point of beginning; being a part of the property conveyed to the grantor herein by Edward Elroy McConnell, Elsie Mae Looney and Mrs. E. E. Moore by deed recorded in Book 488, folio 731, Clerk's Office Bibb Superior Court, and having situate thereon a frame dwelling house known as No. 900 Main Street, Macon, Bibb County, Ga.;" that at the time the deed was made the defendant knew that she did not have title to all of said property, part of which belonged to the City of Macon and comprised a part of Norris Street; and that her representations of ownership were fraudulently made; that defendant at the time owned only 73 feet frontage on Main Street, running 163.2 feet on the west side and 148 feet on the east side to a point; that although the deed described the northern boundary of said tract as fronting 24 feet, more or less, on a 10 foot alley, actually said tract, by reason of having 27 feet less frontage on the south or Main Street side thereof, than that (more or less) represented in said deed, became triangular in form at the northern end before reaching said alley; that plaintiffs, believing they had 27 feet more on Main Street than they actually had, and thinking that this 27 feet more comprised a part of the yard, built a house on said property and later found they had erected said house on or near the line of said property. The plaintiffs contend that they built a garage and brick retaining wall in Norris Street, costing the sum of $1200, due to the defendant's alleged misrepresentations and that the same were constructed on the property that the plaintiffs purchased from the defendant. They also alleged that they paid the sum of $145 on the purchase-price and executed notes aggregating $3700 and a deed to secure the payment thereof. *Page 318
The plaintiffs pray for the rescission of the sale and for cancellation of the notes, for judgment in the sum of $1345; that the defendant be enjoined from transferring said notes and exercising power of sale in the security deed; that equity intervene to do complete justice and avoid a multiplicity of suits; and for general relief and process.
Count 2 alleges in substance the same facts as set out in count 1, and in addition alleges, that the defendant sold said property to the plaintiff for $3750 and because of the alleged shortage the plaintiffs received only $2000 worth of property. The plaintiffs allege: that the purchase-price should be abated because of deficiency and pray that any and all notes in excess of $2000 be canceled and decreed void; that plaintiffs have judgment against the defendant in the sum of $1750; that said notes may be transferred to innocent purchasers for value; that they lost a part of the land which the defendant undertook to convey to them, because of the defect in her title, and pray a reduction of price according to the relative value of the land so lost. The petitioners pray, in count 2: that the purchase-price be reduced and abated to the extent of $1700; that the plaintiffs have judgment against the defendant in the sum of$1700, which is the value of the land lost to them because of the defect in the title of the defendant; that the defendant be enjoined from transferring said notes, given for the purchase-price; that she be enjoined from exercising the power of sale in the security deed; that equity intervene so that complete justice may be done between the parties and a multiplicity of suits be avoided; and for general relief and process.
By answer and cross-bill the defendant denies any liability and contends: that the distances recited in the deed were "more or less" the distance being controlled by the fixed monuments referred to in said deed; that the plaintiffs lived on the property for some time prior to the purchase and knew the boundaries thereof; that only $120 has been paid on the purchase-price; that the building of the wall and garage was done by the plaintiffs prior to the execution of the deed and without the knowledge, authority, or consent of the defendant; that the purchase-money note became in default September 1, 1944, and that the defendant has exercised her option to declare the amount of the principal due *Page 319 and payable at once: that the plaintiffs are indebted to her in the sum of $3.694.75 balance, due as of November 2, 1944, with interest thereon at 7% per annum. The defendant's answer and cross-bill to count 2 is substantially the same as that to count 1. In addition thereto, the defendant denies that the plaintiffs are entitled to a judgment in any sum whatever. On the trial the plaintiffs abandoned the first count and relied upon the second count for recovery. The evidence was voluminous and conflicting but from it, the jury, having returned a verdict in favor of the plaintiffs, was authorized to find facts as follows:
(a) That Mr. A. G. Gledhill was the duly authorized agent of his daughter, the defendant Mrs. Halliburton, in connection with the negotiation and sale of the property. (b) That the deed included a part of Norris Street. (c) That at the time Mr. Gledhill, acting as agent for defendant, and Mr. Irwin measured and staked out property for plaintiffs, he, Mr. Gledhill, knew that the starting point at the N.E. corner of Main and Norris Streets was staked out so as to include a part of Norris Street. (d) That Mr. Gledhill, acting as agent of the defendant, made false and fraudulent representations to the plaintiffs with reference to the location of the line along Norris Street. (e) That plaintiffs were damaged in the sum of $1750 by reason of a part of the property, bargained for by them, being a part of Norris Street.
We do not attempt to say that any of the foregoing statements constitute the facts of this case. We merely say, that from the evidence as disclosed by the record, the jury was authorized to so find.
The jury returned a verdict against the defendant for $1750 on January 24, 1946, based on which, judgment was entered up against the defendant, who filed a motion for new trial on January 26, 1946. The motion was subsequently amended by adding 11 separate and distinct special grounds as assignments of error. The motion for new trial was overruled on April 22. To this judgment the plaintiffs in error excepted and assigned same as error. The case was first taken to the Supreme Court, which court (201 Ga. 340) held that the injunction feature was disposed of before trial; that no equitable relief was granted; and that the judgment rendered in the court below was not in a suit "respecting title to land," within the provisions of article 6, section 2, paragraph *Page 320 4, of the Constitution of 1945, but that the judgment rendered therein was on a suit essentially an action for the recovery of the value of land. The case was thereupon transferred to this court for decision. A motion was filed by defendant in error to dismiss the bill of exceptions, and thereupon the defendant in error proffered an amendment to the same. As disclosed by the record, the motion for new trial was filed within 30 days and during the term at which the trial was had.
The bill of exceptions recites that the "case proceeded to verdict and judgment [on January 24, 1946] in favor of the plaintiffs, at the December Term 1945." January is in the December Term. (See Ga. L. 1946, p. 797). Moreover, the bill of exceptions avers, that the motion for new trial was made "within the time prescribed by law," and that the judge certifies that "the same is true." Without passing upon whether or not the bill of exceptions was originally imperfect, even if so, the amendment offered thereto contains only allegations, the correctness of which are disclosed by the record itself, and as amended is not subject to dismissal. The plaintiff in error, under these conditions, is entitled to amend her bill of exceptions. Code, §§ 6-1309, 6-1401; Summerlin v. State, 130 Ga. 791 (61 S.E. 849).
The proffered amendment to the bill of exceptions is allowed and the motion to dismiss the same is overruled.
Part 1, section 2 of the brief for plaintiffs in error, herein points out, that the separate assignments of error, as contained in the amendment to the motion for new trial, present questions of law for decision by this court as follows:
"1. Whether a verdict and judgment for the plaintiff in error were demanded as a matter of law.
"2. Whether the verdict and judgment are contrary to law, as being in excess of the amount prayed in the petition, when the prayer was for One Thousand Seven Hundred ($1700) Dollars and the verdict and judgment were for One Thousand Seven Hundred Fifty ($1750) Dollars.
"3. Whether the verdict and judgment were contrary to the weight of evidence, and so strongly and decidedly against the *Page 321 weight of evidence as to indicate prejudice, bias or gross mistake on the part of the jury.
"4. Whether the defendants in error could recover in an equitable action to enjoin the execution of a power of sale and for the abatement of the purchase price of property when they were in default on the payment of a deed to secure a debt on the property.
"5. Whether the petition stated a cause of action after the defendants in error elected to stand on the second count of their petition.
"6. Whether the verdict and judgment were contrary to law in that they were decidedly and strongly against the weight of the evidence and were in excess of the sum asked by the petition, where the petition asked for a reduction according to the relative value of the land alleged to have been lost, and the verdict and judgment are for a sum almost equal to the entire value of the land, and are not limited to the value of the portion alleged to have been lost.
"7. Whether that part of the charge of the Court below was error, as follows: `Now in this second count on which only the defendant (plaintiff) rely, they contend that they purchased a lot of land in East Macon, with the definition which I have just read you, that there was actually delivered to them only 73 feet front on Main Street and the property did not run back to the alley, that it had no frontage on the alley whatever, and that in consequence of that the plaintiffs have not received the land they bargained for, in other words their contention is there was a shortage in the quantity of land delivered to them as compared with the quantity of land which they bought, and they contend that they were misled by the fraudulent act of the defendant or her agent into believing they were getting all of the land they thought they bought; they contend that they are entitled at your hands to a verdict representing the difference in value between what they ought to have got, as they contend, and what they actually did get. They say that that difference amounts to $1750 — $1700, I believe — according to the pleadings — that the land which was actually delivered to them, which they got, and the only land which the defendant could have deeded to them, was worth only $2000, and that the land which they failed to get because it was a part of Norris Street, was worth $1750 and they ask at your hands a *Page 322 verdict for $1700 credit on the original purchase price and would bring the purchase price down to about $2000;' it being contended that said charge is confusing, constitutes a misstatement of the contentions of the parties, and is without evidence to support it.
"8. (a) Whether the court erred in charging the jury as follows: `Of course, if as a matter of fact the plaintiffs got less land than they bargained for by the contract, the written contract, why then they would be entitled to recover the difference between the two amounts, the amount they agreed to pay and the value of the land which they actually got. That is a question of fact for you to determine. You find out whether or not they got less land than the contract authorized them to get. Now in the consideration of that question you will have that contract out with you, the contract of sale and the deed; there are descriptions there and if those descriptions are followed in the deed to the plaintiffs, why then they got all the land they bargained for;' it being contended that said charge is an incorrect statement of the law and an incorrect statement of the contentions of the parties, and (b) whether the court erred in failing to charge as to the legal effect of the written instruments.
"9. Whether the charge of the court was erroneous as follows: `If the difference between the measurement of 100 feet and the measurement set out in the contract is so gross, so great as to lead you to suspect that there was fraud in the transaction, why then you could take that into consideration and settle on the 100 feet; but if there is nothing in the circumstances of the transaction that would arouse any suspicion of fraud, if the parties had an equal opportunity to know what the frontage was, and if the defendant thought that there was 100 feet between there, and that the difference between the 100 feet and the 73 feet was not so great as to justify you in suspecting a fraudulent purpose in naming these boundaries and describing them, the plaintiffs would be able to get only between the boundaries, whatever the boundary is 73 feet or 100 feet.' It being contended that said charge incorrectly states a principle of law, is an expression of opinion by the trial judge, is not adjusted to the issues and confused and misled the jury. *Page 323
"10. (a) Whether the court erred in charging the jury as follows: `Now, under the law, boundaries — fixed boundaries, will prevail in ascertaining the proper construction of the contract of sale, of the deed and of the mortgage; if there was fraud in the transaction and there was a deficiency in the amount of the land, a difference between the description in the deed, or the contract of sale — they all follow the same description — and the amount of land actually received by the plaintiffs in this case, they would have a right to have the purchase price abated to the extent of that difference;' and (b) whether the court erred in failing to charge as to types of fraud.
"11. Whether the charge of the court with reference to the courses and distances was error, as follows: `The expression "more or less," to a fixed boundary on a map will cover any discrepancy not so gross as to make the jury suspect that there was fraud in the transaction. If there was a deficiency between a distance of 100 feet named in the contract and the 73 feet actually on the land, if that difference was so great as to make you suspect that there was fraud on Mr. Gledhill's part in naming that distance, and that he intended to defraud and misrepresent the situation to the plaintiffs, why then that would amount to fraud;' it being contended that said charge constitutes an expression of opinion, incorrectly states the principle of law involved and intimates that one of the contended issues had been proven."
These special assignments will be discussed in this order.
1. The recovery in this case, if to be had at all, would have to be authorized by §§ 29-201, 29-202 of the Code as follows: "In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or entire body, a deficiency in the quantity sold cannot be apportioned. If the quantity is specified as `more or less,' this qualification will cover any deficiency not so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud; in this event the deficiency is apportionable; the purchaser may demand a rescission of the sale or an apportionment of the price according to relative value." § 29-201. "If the purchaser loses part of the land from defect of title, he may claim either a rescission of the entire contract, or a reduction of the price according to the relative value of the land so lost." § 29-202. The case *Page 324 of Mangham v. Cobb, 160 Ga. 182 (127 S.E. 408), holds as follows: "Where a city lot of land is sold in a body as containing a frontage of a certain number of feet, `more or less,' and both parties have equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned; aliter where the vendor in the course of the sale is guilty of actual fraud in representing the frontage. An allegation that the vendor's representation at the time of the sale, as to the width of the lot, was false within his knowledge, and was acted on by the vendee to her injury, is a charge of actual fraud. If she was fraudulently induced to buy a lot of width less than the vendor represented it to be, she was entitled to a reduction of the purchase-money in the proportion that the deficiency in frontage bore to the frontage bargained for." The case of Gibson v. Alford,161 Ga. 672 (2c) (132 S.E. 442), holds as follows: "Where a vendor agrees to sell a designated tract of land to another and points out to the latter its boundaries, and the purchaser relies upon the representations of the vendor as to the boundaries, and where such boundaries include lands to which the vendor has not title, in consequence of which the purchaser loses the same, the purchaser, when sued on notes given for the purchase-money, can set off at law the value of the portion of the land so lost, against the purchase-money. This would be true whether the misrepresentations were designedly made by the vendor to deceive the purchaser, or were innocently made, if the vendee relied upon such misrepresentations in making the purchase and was thereby damaged." In actions for recovery for deficiency in land the measure of damages generally is the pro rata part of the purchase-money paid or to be paid for deficiency with interest. It is not less than this. Estes v. Odom, 91 Ga. 601 (5) (18 S.E. 355). However, where a part of such property may be of greater value than other portions this is not necessarily a fixed rule. White v. Adams, 7 Ga. App. 764 (68 S.E. 271).
As contended by counsel for plaintiff in error, the rule that courses and distances yield to fixed monuments is well established in this State. Riley v. Griffin, 16 Ga. 141 (60 Am. D. 726); Stewart v. Latimer, 197 Ga. 735 (30 S.E.2d 633). But where the vendor in the course of the sale is guilty of actual fraud in representing the boundary line or lines as well as the course an *Page 325 distance of any of such boundary line or lines of such city real estate lot, if the buyer was fraudulently induced to buy a lot of less width or depth than the vendor represented it to be, the buyer would be entitled to a reduction of the purchase money in proportion to the deficiency such line or lines bore to the line or lines bargained for. Mangham v. Cobb, supra; Gibson v.Alford, supra. We think therefore, this assignment of error is without merit.
2. Count 2 of the petition, relied upon by the plaintiffs below, alleged substantially: that the purchase-price of the property in question was $3750; and that by reason of the deficiency of land under the conveyance the part they received was not worth more than $2000; that they were damaged in the sum of $1750; and in paragraph 10, of said petition, prayed for a judgment in this sum. While in the prayer of the petition the figure $1700 is used twice, it will be seen that in this respect the petition is ambiguous and capable of two constructions. In such case and in the absence of demurrer, the construction will be adopted which supports the verdict. Bridges v. Ramsey SignService Company, 50 Ga. App. 583 (179 S.E. 404). The same rule applies in construing the evidence. Martin v.Hutchinson, 26 Ga. App. 24 (2) (105 S.E. 313). This assignment of error is without merit.
3, 6. These assignments of error are considered together. The Code, § 105-2015, provides as follows: "The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias." Section 70-206 provides: "The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of evidence, although there may appear to be some slight evidence in favor of the finding." There is evidence in the record authorizing the jury to return a verdict in the amount of $1750. The verdict has the approval of the trial judge and we are unauthorized to hold that it constitutes an abuse of his discretion. The assignment of error is without merit.
4. This assignment of error raises an equitable question. This case first went to the Supreme Court (Halliburton v. Collier,201 Ga. 340, 39 S.E.2d 698), which court held: "The judgment rendered was not in a suit `respecting title to land' within the *Page 326 provisions of art. 6, sec. 2, par. 4 of the Constitution of 1945. Such judgment was in a suit essentially an action at law for the recovery of the value of land. Grobli v. Foreman, 171 Ga. 712 (156 S.E. 622); Farkas v. Stephens, 181 Ga. 669 (183 S.E. 796); Henley v. Colonial Stages, 184 Ga. 445 (191 S.E. 445); Gilbert Hotel v. Black, 192 Ga. 643 (16 S.E.2d 435). It therefore appears that all questions for decision are properly within the jurisdiction of the Court of Appeals and not the Supreme Court." It is therefore the law of this case that there is no equity therein, and for this reason this assignment of error cannot be considered by this court.
5. We think this assignment of error is without merit particularly in view of the failure of the defendant below to interpose demurrer to the second count of the petition. On the trial either party has the right to support allegations contained in the pleadings as laid. Clark v. Bandy, 196 Ga. 546 (27 S.E.2d, 17); Phillips v. Southern Railway Company,112 Ga. 197 (37 S.E. 418).
7, 8 (a), 9, 10 (a), 11. The excerpts from the charge of the court complained of in these assignments of error when construed together with the whole charge, are not subject to the criticisms pointed out, do not constitute error, and are without merit.
Assignments of error contained in 8(b) and 10(b) are based on failure of the court to charge certain principles but failed to set out the language in which the court should have charged. The same are without merit. Wiley v. State, 3 Ga. App. 124 (59 S.E. 438).
A new trial is not required under the general grounds of the motion.
Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.