Jones v. Munroe

*188 By the Qovrrt.

Jenkies, J.,

delivering the opinion.

The law regulating the practice in Courts of original jurisdiction, in Geoi’gia, allows amendments of the pleadings at any stage of the proceeding. Notwithstanding, therefore, the defendant in error (complainant below) failed both in his original bill, and in his first attempt at amendment, to make a case entitling him to relief in equity, if his last amendment of his bill, (which was presented before the final order of the Court below dismissing his bill), contains averments entitling him to relief, he must be heard upon the merits.

Having carefully examined the last amendment, we think it does clearly allege that the agreement, the cancellation of which is the relief sought, was entered into under a mistake of law, on his part, the facts being well understood.

The rule of law concerning which the mistake is alleged to have been made, and upon which the title of the defendant in error rested, is this, “ a conveyance of land by one against whom the land conveyed is held adversely, by claim of title, is void.” Taking this to be the rule of law, the title of defendant in error was good. Under the impression that the rule was otherwise, defendant in error compromised his title, and it is this compromise which he, by his bill, seeks to set aside. Is that the rule of law in Georgia? In Harris vs. Cannon et al., 6 Ga. R., 382, and in Harrison vs. Adcock et al., 8 Ga. R., 68, this Court unanimously affirmed the rule.

In Cain & Morris vs. Monroe, (involving the very title which defendant compromised subsequently,) a majority of the Court disaffirmed the rule, Judge Lumpkin, in a dissenting opinion, adhering to the previous rulings. In Gresham vs. Webb et al., 29 Ga. R., 320, a majority of the Court overruled Cain vs. Morris et al., and reaffirmed the rule established in the earlier cases—Judge Benning dissenting.

By the Act of 1858, the Legislature provided, imperatively, that the decisions of this Court, made, or to be made, in which all three of the Judges concurred, or may concur, shall not be reversed, overruled, or changed, except by the *189General Assembly, and that such decisions shall be carried into effect by the Courts, until thus reversed, overruled, or changed.

In the first place, then, the cases of Cain & Morris vs. Munroe, and of Gresham vs. Webb etal., being adverse the one to the other, and neither made by a concurrence of all the Judges may, and should, be put out of the question. In the next place, the cases of Harris vs. Cannon et al., and Harrison vs. Adcock et al., both of which emanated from a full bench, all of the Judges concurring, must, under the Act of 1858, be now regarded by this Court as declarations of the law. In this view, the last amendment of defendant in error to his bill, sufficiently avers, that the agreement of compromise with Bond, was made by him under a mistake of law. In such'cases, relief will be granted by a court of equity. 1 Story's Eq. Jur., sec. 121 et seq. to 132. 'This was no family compromise. It was no compromise under the impression that the law was doubtful or uncertain, made with a view of bringing peace. It was under an entire and thorough mistake of law.

We go no further, however, than to decide, that the averment in the bill, as amended, regarding this mistake, is sufficient to entitle the complainant to a hearing on the merits, and we consider it only as affecting the validity of the agreement of compromise between Munroe and Bond. How far the rights of the parties in the action at law of Cain & Morris vs. Munroe (still pending) may have been affected by the judgment of this Court, in that particular case, we leave as an open question, until presented for our adjudication. We affirm the judgment of the Court below, allowing the amendment and retaining the case.

Judgment affirmed.