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CANDLER, Justice.
Injunction. Fulton Superior Court. Before Judge Wood. April 23, 1959.
Cobb to Mr. DeLong, he did not think it Was their intention for it to vest in the grantee a permanent right to use the grantor's existing driveway as a means of ingress and egress to and from the lot he was purchasing from her, and that the witness understood the words "when necessary and reasonable," Which he used in that provision of the deed respecting the driveway, to mean that the grantee should have a right to a temporary use of it and not one permanent in character. There is no testimony from either party to the deed that it did not clearly express the terms of their contract as they intended for it to be at the time it was signed by the grantor and when subsequently delivered to and accepted by the grantee. Neither party to the deed testified that it contained a mutual mistake either of fact or of law. From the stipulated facts and McCord's testimony, the trial judge found in favor of the defendant on her cross-action, and on such finding entered a decree of reformation, which deleted from the deed the entire provision conveying to the plaintiff a right to use the defendant's driveway as a means of ingress and egress to and from his lot. The plaintiff moved for a new trial on the usual general grounds only and the exception is to a judgment denying such motion. Held:
1. It is vitally essential to business relationships that the validity of all written contracts freely and voluntarily executed be upheld when it is possible to do so. However, a mistake in the terms of such contracts will ordinarily authorize a court of equity to grant relief, but the power of such a court to do so should always be cautiously exercised. Lewis v. Foy, 189 Ga. 596, 601 (6 S. E. 2d 788). Respecting such contracts, "Mistake relievable in equity is some unintentional act, or omission, or error, arising from ignorance, surprise, imposition, or misplaced confidence. This power shall be exercised with caution, and to justify it the evidence shall be clear, unequivocal, and decisive as to the mistake." Code 37-202. Equity will not reform a written contract on the ground of mistake, unless the mistake is shown to be the mistake of both parties, or where there is mistake on the part of one of the contracting parties and fraud on the part of the other; and when a contract contains a mutual mistake, either of law or of fact, a court of equity will, on application by one of the parties thereto, reform the contract so as to make it express their true intention if the applicant for such relief has exercised reasonable diligence for his own protection in making the contract or in discovering the mistake. Code 37-207, 37-211; Prince v. Friedman, 202 Ga. 136 (42 S. E. 2d 434). "A distinction exists between reforming a contract and executing a contract in case of mistake. To authorize the former, the court shall be satisfied by the evidence that the mistake was mutual; but the court may refuse to act in the latter case, if the mistake shall be confined to the party refusing to execute." Code 37-208. A mutual mistake is one which is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. 45 Am. Jur. 618, 56. In Archer v. McClure, 166 N. C. 140 (81 S. E. 1081, Ann. Cas. 1916C, p. 180), that court said, that by the statement that the mistake must be mutual before a written instrument may be reformed by a court of equity "is not meant that both parties must agree at the hearing that the mistake was in fact made, but the evidence of the mutuality must relate to the time of the execution of the instrument and show that the parties then intended to say one thing and by mistake expressed another and different thing." So, for the defendant in this case to be entitled to the equitable relief of reformation which she sought by her cross-action, the burden rested on her to show by clear, unequivocal, and decisive evidence: (1) that, in the preparation of the deed which she seeks to reform, a mutual mistake had in fact been made by the parties thereto; and (2) that she had not been so negligent in the execution of the deed, or in discovering any mistake which appeared therein, as to estop her in equity from asking for its reformation. See Keith v. Brewster, 114 Ga. 176 (39 S. E. 850). These two requirements will be dealt with in the order of their statement.
(a) In Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 705 (38 S. E. 2d 534), this court unanimously said that a mistake which the draftsman makes in the preparation of a contract, while acting by the direction of only one of the contracting parties, is a unilateral mistake, and is one which will not warrant reformation. In this case there is no evidence showing or tending to show that the grantee was present when the deed sought to be reformed was prepared, and it is a reasonable and logical inference that the grantor was present at such time and gave the draftsman direction respecting its contents; and this is especially true since he prepared it for her and she signed it in his presence as a subscribing witness. And if the deed she seeks to reform does not in fact express the contract, as she understood it to be at the time of its preparation and execution, it is highly significant to us that she did not take the stand as a witness in her own behalf and testify that her grantee's right to permanently use the driveway as a means of ingress and egress as conveyed by her deed was contrary to the direction she gave the draftsman respecting his preparation of the deed, or that it was contrary to any agreement or understanding she had with anyone about it. While the draftsman, as a witness for the defendant, testified to conversations which he had separately and apart with the purchaser and the seller at some unspecified time prior to the execution of the deed, which tend to show that the parties intended for the purchaser to use the seller's driveway as a means of ingress and egress only for a limited period of time, yet it is a well-settled principle of law, which needs no citation of authority, that all pertinent representations and negotiations prior to the preparation and execution of a written contract are merged therein; and where, as here, the terms of the written contract are clear and unambiguous, this court will look to it and to it alone to find the intention of the parties with respect thereto; and more especially is this rule applicable in the instant case, since there is no evidence showing or even tending to show that the purchaser undertook in any way to mislead the seller or to deceive her as to the meaning and effect of any provision incorporated in the deed which the latter seeks by this litigation to reform. This court attaches little, if any, importance to the testimony of an attorney who prepares a deed and writes in it a clear and unambiguous provision, and, after litigation arises between the grantor and the grantee respecting its meaning, testifies that he thought the provision meant something entirely different from that so clearly expressed thereby.
(b) While Code 37-206 declares that, in all cases of mistake of fact material to the contract or other matter affected by it, if the party complaining applies within a reasonable time, equity will relieve, yet, as explanatory of this general principle, Code 37-211 just as emphatically declares that, "If a party, by reasonable diligence, could have bad knowledge of the truth, equity shall not relieve; nor shall the ignorance of a fact, known to the opposite party, justify an interference, if there has been no misplaced confidence, nor misrepresentation, nor other fraudulent act." A casual reading by the grantor of the provision in the deed here involved would have revealed to her that her grantee's right to use the driveway over her lot for the purpose of ingress to and egress from the lot he was purchasing from her was not temporary but was permanent in character; and, with respect to this provision of the deed, there is absolutely no proof of any misplaced confidence, misrepresentation, or other fraudulent act. The evidence simply shows that Mrs. Cobb, the grantor, freely and voluntarily executed the deed containing the provision she seeks to eliminate by the equitable remedy of reformation, without making any inquiry as to the meaning and effect of it if she entertained any doubt as to such when she executed the deed. If she failed to read it, that was her own fault or negligence, since no one, as the record shows, prevented her from doing so. Respecting the amount of diligence which one is required to exercise in executing a contract before he may apply to a court of equity for relief concerning it, see Keith v. Brewster, 114 Ga. 176, supra; Adler v. Adler Co., 205 Ga. 818 (55 S. E. 2d 139); Lewis v. Foy, 189 Ga. 596, supra; Adams v. Perry, 213 Ga. 479 (99 S. E. 2d 881), and the cases there cited.
2. Since the evidence in the instant case did not authorize a finding in favor of reformation, we hold that the trial judge erred in overruling the motion for new trial, based, as it was, on only the usual general grounds.
J. Sidney Lanier, contra.
Preston L. Holland, for plaintiff in error.
Saturday May 23 00:38 EDT

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