¶1(with whom Simmons, C. J., concurs), dissenting. It may be that the plaintiff, was not authorized in this suit to take advantage of a fraud not practiced upon him, but upon one under whom he claims. It may be, in view of the peculiar relation between the parties, that to seek to reform the deed was a new cause •of action. But we are forced to dissent from what the majority say on the general right to amend. . We think the amendment was .allowable on general principles. It alleged that the loan was made on the security of a certain piece of land which the defendant fraudulently represented to bear the lot number 425. In substituting the correct number the plaintiff was not suing for a different tract. 'The amendment sought to recover the same property for which the suit was originally brought. Plaintiff sued for “ White Acre,” calling it number 425, because the defendant had given it that number. When plaintiff discovered what the real number was and ¡substituted that for the designation fraudulently given by the defendant, he was not changing his cause of action, nor suing for a •different parcel of land. To disallow the amendment enables the ■defendant to do two wrongs instead of one. He is allowed to take advantage of his original wrong, to entrap the plaintiff into suing for number 425, and then laugh him out of court when he changes the name and lot number of the property from the false description given by the defendant to the true description of the map.
118 Ga. 156
Venable v. Burton
Decided June 1, 1903
Supreme Court of Georgia · decided 1903-06-01
<p>A petition in an action to recover real property described the land as “ lot of land number four hundred and twenty-five (425) ” in a given county, district, and section, and containing a specified number of acres. Plaintiff derived title from one to whom the defendant had conveyed the'property to secure a debt. Both the deed from defendant to his creditor and the deed from the latter to plaintiff described the property in the manner set forth in the petition, and there was no other description either in the deeds or the petition. An amendment was offered and allowed setting up that under the contract between the defendant and the grantee in the deed from him a different number of lot was agreed to be conveyed, and that the defendant, with intent to cheat and defraud the grantee had the scrivener to insert in the deed lot number 425. The prayer of the amendment was that the deeds be reformed so as to embrace the number of lot agreed to be conveyed, and that this lot be sold and plaintiff’s debt be paid out of the proceeds in preference to all other claims against the defendant. Held, that the amendment set forth a new and distinct cause of action, and that the court erred in overruling a demurrer thereto based on this ground.</p> <p>Simmons, C. J., and Lamar, J., dissent.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1903-06-01
How this case has been cited
Cited by 11 later decisions — most recently January 1965
11 state decisions
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