GROOVER, administrator, v. SIMMONS

Supreme Court of Georgia1921-12-16No. No. 2459

152 Ga. 423

Summary · law.co

Holding. The judgment granting a new trial was affirmed because the trial court properly found that a juror's disqualifying relationship to parties and counsel was unknown and undiscoverable; however, the court erred in allowing amendment paragraphs claiming the defendant could conduct a public sale to satisfy liens, as the deed granted only a payment obligation, not a sale authority, and those paragraphs must be struck on remand.

Groover sought to cancel or reform a deed that he claimed conveyed 920 acres when only 632 acres were intended. The deed stated that existing liens on the property would be paid by the buyer from the purchase price. Simmons amended his answer to assert that the parties had agreed the liens would be transferred to him and paid by him, and he requested the court order a public sale of the land to satisfy those liens. Groover objected to this amendment as contradicting the deed's explicit terms. A jury verdict favored Groover, but the trial court granted a new trial after discovering that one juror was related to both Groover and Simmons's attorney—a disqualifying relationship that neither party knew about or could have discovered through reasonable diligence.

The court held that granting the new trial was proper because the juror's undiscoverable relationship required it. However, the court found that the trial judge erred in allowing the amendment's paragraphs claiming Simmons had authority to conduct a public sale of the property to pay the liens. The deed language gave Simmons only the obligation to pay the liens from the purchase price, not the power to sell the land itself. Accordingly, the court directed that on remand, those problematic paragraphs be struck from the answer.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a new trial was properly granted due to an unknown juror disqualification
Whether an answer amendment improperly varied the terms of a written deed
Whether a grantee's authority to sell property to satisfy liens can be inferred from a deed requiring him to pay liens from purchase proceeds

Procedural posture

After a jury verdict for the plaintiff and a subsequent grant of a new trial by the trial court, the plaintiff appealed the allowance of the defendant's amended answer.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Hill, J.

James B. Groover filed an equitable petition against Brooks Simmons, to cancel a certain deed executed by the plaintiff to the defendant, purporting to convey 920 acres of -land, instead of 632 acres as really intended to be conveyed. The prayer was for the cancellation of the deed, or, in the event that the jury should find that the sale should not be rescinded, that the deed be so reformed as to speak the truth, and convey only 632 acres of land. The deed contained this covenant: “ This deed is made subject to all liens against said lands, and is to be paid off by said grantee out of said purchase-price of said lands.” The court allowed an amendment to the answer of the defendant, that, “ at the time of the purchase of said 920 acres and at the making of said deed, it was understood between plaintiff and defendant that the liens against said property at that time were to be transferred to defendant, and that they were to be paid, so far as the holders of the liens at that time were concerned,” and otherwise varying and contradicting the terms of the deed. Defendant prayed that a decree be made, directing the advertisement and sale of the 920 acres under the liens existing against the property at the date of the deed. The plaintiff demurred to the amendment to the answer, on the ground, among others, that it was a material variance from the terms of the sale as expressed in the deed from the grantor to the grantee. The demurrer was overruled, and the amendment to the answer allowed; and the plaintiff excepted pendente lite. The case proceeded to trial, and a verdict was rendered in favor of the plaintiff. A new trial was granted on the ground of the relationship of one of the jurors to the plaintiff and to one of the defendant’s attorneys. The plaintiff ex cepted both to the grant of a new trial and to the allowance of the amendment to defendant’s answer.

It is conceded that one of the jurors who rendered the verdict in this case was related to the plaintiff, and to the defendant’s attorney, within the prohibited degree; and on the hearing of the motion for new trial the judge was authorized to find from the evidence that neither the plaintiff nor any of his attorneys knew of the relationship at the time of the trial, and could not by the exercise of reasonable diligence have known of it. It was therefore not error for the judge to grant a new trial on that ground of the motion.

The 17th and 18th paragraphs of the amendment to the defendant’s answer were improperly allowed, because they varied the terms of the deed, which provided that the deed was made subject to all liens against the land, and that they were to be paid off by the grantee out of the purchase-price of the land. There is nothing in the deed giving the defendant the authority to put up the land at public sale for the purpose of satisfying the liens against the land. Civil Code (1910), § 5788; L. & N. R. Co. v. Willbanks, 133 Ga. 15 (65 S. E. 86, 24 L. R. A. (N. S.) 374, 17 Ann. Cas. 860). A new trial having been properly granted, as ruled in the first headnote, that judgment is affirmed; but the court having erroneously allowed the 17th and 18th paragraphs of the amendment to the answer, direction is given that on the next hearing of the case the demurrer be sustained in part, and that the 17th and 18th paragraphs of the amendment, and the corresponding prayer, be stricken.

Judgment affirmed, with direction.

All the Justices concur.