1. A new trial will not be granted because the charge as to the issues made by the pleadings included an issue not made by the pleadings but made by evidence introduced without objection and which could have been made a part of the pleadings by amendment. Tietjen v. Dobson, 170 Ga. 123 (152 S.E. 222, 69 A.L.R. 1408).
2. In this action to reform a deed because of mistake, it was not error to charge that the petitioner must carry the burden of proof by a preponderance of the evidence, when elsewhere the court charged that proof of the mistake must be clear and convincing.
3. A correct charge on the necessity that there be some reason for an injured party relying upon the acts and words of the other party was not error for the assigned reason that there was no evidence to warrant it.
4. The court did not err in failing to charge as to whether the mistake relied upon was one of law or of fact and in failing to charge the law on mistake of law and mistake of fact, in the absence of a timely request, the alleged mistake being a conveyance of a fee by deed when only a life estate was intended.
5. The evidence showing that the petitioner had but one eye, and that at the time she signed the deed she could not read it, but failing to show that any emergency requiring her to sign it at the time existed, that she was able to read immediately thereafter, and that she did in fact shortly thereafter read a will which had devised the property to her, and that she did not request either of the two witnesses to the deed to read it or request the grantee to read it, the verdict in favor of the petitioner reforming the deed because of alleged mistake upon the part of the grantor and fraud upon the part of the grantee was unauthorized by the evidence.
No. 16502. FEBRUARY 15, 1949. *Page 739 Mrs. Lucille Kirby brought suit against Miss Eva Mae McCullough, seeking to reform a deed executed on February 26, 1947, for a consideration of $2500 and conveying the fee-simple title to a farm of approximately 100 acres. The petition alleged: The agreement was for the sale of the petitioner's life interest only, and at the time she signed the deed she was unable to read, and the defendant told her that the deed conveyed only a life interest. On July 14, 1947, the petitioner had the title to the land examined and then for the first time she learned that the defendant had recorded a warranty deed to the land, which recited that it conveyed a fee-simple title. She placed great confidence in the defendant, her niece, and relied upon what the defendant told her. The petitioner lost her right eye while she was a child, and the vision of her left was greatly impaired, so much so that she can not read at all times even with the aid of glasses, and this condition was fully known to the defendant at the time the deed was executed. At the time the deed was executed she was totally unable to read, and she signed it wholly ignorant of its contents at that time except what the defendant told her. She was induced by the deception and fraud practiced upon her by the defendant to sign the deed, and she made a mistake in signing it and believed that it conveyed only a life estate. The land conveyed was worth at the time $8000. The deed does not express the contract or agreement, which contract was that the deed convey only a life estate. At the time the petitioner signed the deed she attempted to read it, and was unable to read the paper for the reason that her eye was weak and the letters and words blurred. She thereupon requested the defendant to inform her of its content, and the defendant advised her that the deed she was preparing to sign conveyed only a life estate. About the 15th or 16th of June, 1947, the petitioner asked the defendant to sell the life estate in the said land back to the petitioner. The defendant refused and said that she owned the entire fee, and that the defendant knew at the time the deed was signed that it conveyed the fee and had got what she had wanted for a long time and she was going to keep it. The prayer was for the reformation of the deed to *Page 740 cause it to convey the life estate only, for process, and for general relief.
The defendant's answer denied the material allegations of the petition, and affirmatively alleged that the deed referred to in the petition embraces the contract between the parties, that the defendant purchased the fee-simple title, and that it was the intention of the petitioner to sell and convey the fee-simple title to the land described in the petition.
Upon the trial of the case the petitioner testified in part as follows: She went to Vidalia on February 27, 1947, to sign a certain deed. She did not know either O. C. Eidson or J. Y. Chastain Jr., who were present in the bank when she signed the deed here involved and both of whom witnessed the deed. The petitioner knew that the defendant knew that the petitioner could not read the deed. The petitioner told the defendant that at the time she went to sign the deed. When the petitioner told the defendant that she could not read, the defendant said that it was the petitioner's life interest. The petitioner asked the defendant if it was her life interest, and the defendant said it was. The petitioner did not remember when she had the agreement with the defendant to sell the life estate. The defendant wrote her when she was in Philadelphia and asked if she would consider selling her life interest in the land. The petitioner has lost the letter, and it can not be found. The defendant said in the letter that the land was far away, and the petitioner could not see about the rental, and asked if the petitioner would consider selling the life interest, that that was all she had in the place. The defendant is the daughter of the petitioner's sister. The defendant as a girl made occasional visits to the petitioner's home. The petitioner has been closely related to the defendant and has been seeing her and knowing her all of the defendant's life. She does not know that the defendant ever did any little errands for her, but she was just in and out of the house. They lived only a few hundred yards apart and were close to each other in regard to friendship. The defendant was like the petitioner's daughter. The petitioner had no children of her own and loved children. She lived on the farm here involved all of her life until her mother died in 1941. At the time or just before she signed the deed in the bank, she tried to read it, but *Page 741 could not because the words were blurred, and she asked the defendant what was the deed's content, and the defendant replied that it was her life interest in the place. She was induced by the defendant's assurance to sign the deed. She relied on and trusted the defendant, and had no idea that she would fail her or anything and had no reason not to believe her. When the defendant told her that the deed conveyed a life interest, she believed it, and because of her belief and confidence in the defendant she signed the deed. She did not remember how long after she signed it before she found out that it was different, but it was perhaps two months. She found out that the deed conveyed more than a life estate because she had been sick and sold a life interest because of a desperate need for money, and then realized that the sum of money she got was only five years' rent. She had been renting the farm for $500 a year. She asked the defendant to let her have it back and to take the money back and offered to give her the money back, and then she found out that the deed conveyed the fee in the land. When she asked the defendant to rescind the contract, the defendant told her that maybe next time she would wake up and read what she signed, that the defendant had a straight deed and she had always wanted the place. The defendant's brother was with the petitioner at the time and carried her to the courthouse. The petitioner could not believe that she owned the fee in the land. She had always been told, and her father, as administrator of the estate, had informed her all the time, and everyone else had told her that she owned a life interest in the place, and she had never read the will, and she and the defendant's brother read it together and found that the defendant was telling the truth because the petitioner did own the whole thing and could have sold it and made an outright deed if she had wanted to. "Since then I have found out that this paper was not my contract. Then I filed this suit to reform the contract that same afternoon." Nobody else told her that she owned more than a life estate in the land. On reading the will she still could not believe it because it had been so firmly told to her all of her life that since her father died that was all she had, just a life interest. The land is worth anywhere from $8000 to $10,000, perhaps $7000. It had 14 acres of pecans on it that were about 35 years old. It *Page 742 has a nice building. It has a five-room bungalow. She lost the sight of one eye when she was about two and a half years old, and it has given her quite a bit of trouble. She does not remember whether the will was probated shortly after her father died. She was advised that she had a life interest in this property. She had known for years that her father left a will devising this land to her and had known that she had some interest in it. She did not get a copy of the will. There was nothing to prevent her from going to the ordinary's office and examining the records and learning what interest she obtained under the will, but she decided that the ones who were telling her how it was made were telling the truth and she believed them and saw no reason for further inquiry. She had thought about the matter for a good many years after her father died, but never knew what interest she had in the land until after she made this deed. "When I made this deed I thought that I had only a life estate because they told me so." The only reason she inquired of the defendant if the deed conveyed only a life estate was that a life estate was all she was supposed to have. Had she known at the time that she owned the fee, she would not have sold it for $2500. "I was signing a deed to all the interest I thought I had." The defendant said she would have to buy the other heirs' interest after the petitioner's death so she could own the property. The petitioner is 41 years old and has been married twice. The reason she did not ask either of the two gentlemen who witnessed the deed to read it was because she trusted the defendant completely. She asked the defendant to tell her what was in the deed, because of more or less curiosity just how a life interest would be worded. She offered to sell her life interest in the land to Mr. McCullough for $2500, and she offered to sell it to Mr. Scarborough, both of whom refused to buy it because the petitioner could not make a good deed. She has now looked at the will, and has seen that she owned the whole interest in the land.
A number of witnesses testified that the land was worth from $7000 to $10,000.
The defendant testified, denying all the material allegations of the petition and the testimony of the petitioner in support thereof. She further testified: The petitioner came to her, seeking to *Page 743 sell her the land and the defendant offered $2000, and the petitioner asked $2500, stating that Mr. Scarborough had offered her $2500, but that she wanted the defendant to have it and would rather the defendant would have it than anybody else, and the defendant thereupon agreed to give her $2500 for it. The defendant got an attorney to draw the deed and the petitioner signed it. Mr. Jackson drew the deed, but she was not present when it was signed in the bank at Vidalia, and Mr. Eidson and Mr. Chastain signed the deed as witnesses. At the time she said she was selling whatever interest she had in the land, and the defendant understood that she was buying the land outright and would not have bought it had she thought otherwise. The pecan trees have not produced anything much for three or four years. There is no timber on the land. The buildings were in a run-down condition and it had no fences. The defendant has repaired the fences and buildings and they are now in fair condition. She has expended several hundred dollars in repairing. When the defendant told her that Mr. Scarborough had tried to buy the land, the defendant asked him, and he told her that he had not offered to buy it. The petitioner was trying to sell the land to everybody she could see. She tried to sell it to the defendant's father. The petitioner made no complaint, at the time she signed the deed, about her eyes. The defendant knew nothing about the petitioner's inability to read. "None of us had heard anything about her not being able to see to read or about anything wrong with her eyes. She read this deed. She took it and read it, then she signed it." The petitioner did not ask the defendant anything about the deed, and no one did anything to prevent her from reading it or having someone else to read it. The defendant understood that she was buying the whole estate, all the interest that the petitioner had in it, and the petitioner understood likewise. The defendant said nothing about buying the interest of the heirs.
The two witnesses to the deed testified that they saw the petitioner sign the deed. Eidson testified that the petitioner was looking at the deed before she signed it. She looked at it and wanted to find out how to sign, whether by her name, just Mrs. Kirby, or how to sign it. The witness advised her to sign it like it was stated at the top of the deed, which was "Lucille Kirby, *Page 744 formerly Mrs. A. L. Sandifer," and she signed it that way. She did not say anything about conveying anything except what was expressed in the deed. She did not asked the witness where to sign, but signed it on the top line.
The witness Chastain testified that he saw the petitioner with the deed in her hands, looking at it, and he thought she had time to read it while she had it in her hands. She did not say anything about not being able to read it and did not ask the witness to read it. She did not say anything about the contents in his presence.
The jury returned a verdict in favor of the petitioner, and the exception here is to the judgment overruling the defendant's amended motion for new trial. 1-4. Headnotes 1, 2, 3 and 4 require no elaboration.
5. It is settled law in this State that "a party to a contract who can read must read, or show a legal excuse for not doing so, and that fraud which will relieve a party who can read must be such as prevents him from reading." Lewis v. Foy, 189 Ga. 596 (6 S.E.2d 788). The decisions which declare this rule are too numerous for citation here. To abrogate that rule would destroy the very foundation of business intercourse, and would render written contracts solemnly executed vulnerable to attack by verbal testimony. The law regards the signature of a party to a contract as evidence of his assent to the terms of that contract, and such evidence is not subject to change as conditions change or as parties might change their minds, and is of the highest quality. The above rule is inflexible and unyielding, and any set of facts that fail in any degree to meet the requirements of that rule is insufficient. As in the present case, many cases arise where oral testimony of the complainant presents a situation surrounding the execution of the contract which would indicate that he has been wronged, but it is the duty of the courts to discover, if they can, whether such wrong or injury results from the act of the party complained against or from the negligence of the complainant. If by negligence one voluntarily remains ignorant of a fact materially affecting his interest and *Page 745 subsequently loses a right or property, he should not expect a court of equity to do that for him which he refused to do for himself. The only way to maintain government by law is for the courts to apply the law and compel observance of its mandates as a condition precedent to the benefit of its protection. It may be true, as found by the jury, that the petitioner's testimony as to the circumstances surrounding the execution of this deed is to be believed in preference to that of the defendant. However, the law attaches to her signature to the deed much importance and regards it as evidence of her assent to the terms of that contract. That signature remains as an exact photograph of the act and intent of the signer until and unless it is overcome by evidence prescribed by the law (Code, § 37-202), as "clear, unequivocal and decisive as to the mistake." See also Yablon v. Metropolitan Life Ins.Co., 200 Ga. 693 (38 S.E.2d 534).
It could hardly be said that the testimony of this complainant measures up to this requirement of the law. The grantor testified that she did not read and because of the condition of her eyes she could not read at the time. She makes no claim that she was illiterate and did not know how to read. Nor does she testify that her inability to read had existed for any time before she signed the deed or continued for any time after she signed it; and since her testimony must be construed strongly against her, it is construed to mean that she could read, both before and after the time she signed this deed. No emergency existed. No claim is made by her that she, for any reason, could not have postponed signing it until she could read the same. No trick or artifice was practiced by the grantee, and it is not claimed that the grantor was prevented from reading by any act of the grantee. She rests her case upon the testimony that she was unable to read at the time she accepted the opinion of the grantee as to the interest which she conveyed. She did not request any of those present to read the deed, but was content to accept the opinion of the grantee. She was able to read, according to her own testimony, a short time thereafter when she read the will devising the property to her, and thereby learned that she owned the fee in the land.
The petitioner's testimony shows that she was negligent over a number of years in failing to ascertain the interest which the *Page 746 will of her father gave her in this land. In that connection she preferred to accept the statement of others rather than go to the trouble of reading the will. She is not entitled now to complain because by the deed she conveyed an interest which she did not know that she owned. Langston v. Langston, 147 Ga. 318 (93 S.E. 892). Significant on this point is her testimony that she intended by the deed in question to convey whatever interest she had, thinking that she owned only a life estate. By this testimony it is plain that she intended to divest herself of all right and title in the land. Her lack of knowledge as to the extent of that title is chargeable entirely to her own negligence. One might and should sympathize with her because she must lose because of her failure to observe the rule of law and equity requiring diligence upon her part. Such rule must not be suspended or nullified in order to protect her from the consequences of her own negligence. To reform this deed, which effectually accomplishes the purpose of the grantor to convey what interest she had, so as to convey a less interest as is done by the verdict here, is to destroy the true intent and purpose and substitute an intent that was born subsequently to the execution of the deed when the petitioner read the will. The law will not make a different contract for the parties. Deck v.Shields, 195 Ga. 697 (25 S.E.2d 514). Any reformation that fails to embody the intention at the time the deed was executed is beyond the power of equity. A mistake that will justify reformation must be either a mutual mistake (Code, § 37-207), or a mistake of the complaining party and fraud of the opposite party. McDonald v. Mullins, 197 Ga. 511 (29 S.E.2d 507);Yablon v. Metropolitan Life Ins. Co., supra. If the complainant intended to convey, as she testified she intended, what interest she had, then there is no mistake, for the deed accomplishes that purpose. Since as ruled above the testimony of the petitioner is insufficient to show that she was a person unable to read because of illiteracy or that she could not have read immediately before or after she signed the deed, the rule that representations of the grantee as to the contents of a deed do not constitute fraud sufficient to authorize reformation (Weaver v. Roberson, 134 Ga. 149, 67 S.E. 662) is applicable and controlling. For the reasons stated, it must be held that the evidence fails to show the *Page 747 essentials for reformation. It follows that the verdict is without evidence to support it, and the court erred in overruling the general grounds of the motion for new trial.
Judgment reversed. All the Justices concur, except Wyatt andHead, JJ., who dissent.