O.C.G.A. § 24-3-7 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3063, former Code 1873, § 3118, former Code 1882, § 3118, former Civil Code 1895, § 3975, former Civil Code 1910, § 4572, former Code 1933, § 38-510, and former O.C.G.A. § 24-6-7 are included in the annotations for this Code section. In general. - If the description in a deed is unambiguous, extrinsic evidence cannot be resorted to, except for the purpose of reforming the deed so as to make the deed express the real intention of the parties and correct a mutual mistake of fact. Miller v. Rackley, 199 Ga. 370, 34 S.E.2d 438, 1945 Ga. LEXIS 312 (1945) (decided under former Code 1933, § 38510). Resort to parol evidence is necessary to reform an instrument. - Written instrument is evidence of what the parties intend to do; but when a party seeks information of an instrument, the instrument is not the best evidence in such controversy. The very purpose of resorting to parol evidence is to contradict the instrument. Nelson v. Spence, 129 Ga. 35, 58 S.E. 697, 1907 Ga. LEXIS 298 (1907) (decided under former Civil Code 1895, § 3975); Gaulding v. Baker, 9 Ga. App. 578, 71 S.E. 1018, 1911 Ga. App. LEXIS 240 (1911) (decided under former Civil Code 1910, § 4572); Green v. Johnson, 153 Ga. 738, 113 S.E. 402, 1922 Ga. LEXIS 163 (1922) (decided under former

Civil Code 1910, § 4572); Sapp v. Ritch, 169 Ga. 33, 149 S.E. 636, 1929 Ga. LEXIS 274 (1929) (decided under former Civil Code 1910, § 4572); Head v. Stephens, 215 Ga. 184, 109 S.E.2d 772, 1959 Ga. LEXIS 430 (1959) (decided under former Code 1933, § 38-510). Because the decedent’s offspring sought reformation of the option contract entered into with the decedent on the basis of mutual mistake of fact due to a scrivener’s error mistakenly describing the property to be sold, parol evidence of the real terms of the agreement was admissible. Morris v. Morris, 282 Ga. App. 127, 637 S.E.2d 838, 2006 Ga. App. LEXIS 1334 (2006) (decided under former O.C.G.A. § 24-6-7). Parol evidence admissible. - Grant of summary judgment to a corporation was vacated as reformation was a possible remedy against a corporation since an owner’s warranty deed to a buyer contained a mistaken descriptor; the owner could seek reformation against the corporation as the corporation bought the property from the buyer under the same mistake and parol evidence was admissible in such a reformation action, even though the owner and the corporation were never parties to the same transaction. Amin v. Guruom, Inc., 280 Ga. 873, 635 S.E.2d 105, 2006 Ga. LEXIS 496 (2006) (decided under former O.C.G.A. § 24-6-7). Trial court erred in granting a bank’s motion for summary judgment in the bank’s action for breach of a guaranty

because parol testimony was admissible and created a genuine issue of material fact over whether the guaranty was executed after the bank had already extended credit to the underlying debtor, and thus over whether the guaranty was void for lack of consideration; as in the context of a deed, a witness is entitled to offer parol testimony that the guaranty was executed on a date other than the date inserted on the guaranty. Helton v. Jasper Banking Co., 311 Ga. App. 363, 715 S.E.2d 765, 2011 Ga. App. LEXIS 726 (2011) (decided under former O.C.G.A. § 24-6-7).

Deed reformed. - See West Lumber Co. v. Moore, 179 Ga. 302, 175 S.E. 642, 1934 Ga. LEXIS 276 (1934) (stipulation as to assumption of liens) (decided under former Code 1933, § 38-510); Smith v. Smith, 223 Ga. 560, 156 S.E.2d 901, 1967 Ga. LEXIS 606 (1967) (date of execution of deed) (decided under former Code 1933, § 38-510). Contract reformed. - See West Lumber Co. v. Moore, 179 Ga. 302, 175 S.E. 642, 1934 Ga. LEXIS 276 (1934) (stipulation as to assumption of liens) (decided under former Code 1933, § 38-510).

RESEARCH REFERENCES Am. Jur. 2d. 29A Am. Jur. 2d, Evidence, § 1092. C.J.S. 32A C.J.S., Evidence, §§ 1149, 1166, 1181. ALR. Does right of grantor to maintain a suit in equity to set aside his conveyance for cause survive to his heir, 33 A.L.R. 51. Exception to rule of admissibility of parol evidence to show that deed absolute

on its face was intended as a mortgage, 111 A.L.R. 448. Parol evidence rule as applied to lease, 151 A.L.R. 279. Admissibility of extrinsic evidence to identify person or persons intended to be designated by the name in which a contract is made, 80 A.L.R.2d 1137. Application of parol evidence rule in action on contract for architect’s services, 69 A.L.R.3d 1353.