Title 23

A mistake of law by the draftsman or other agent, by which the contract, as executed, does not fulfill or violates the manifest intention of the parties to the agreement, may be relieved in equity. History. — Orig. Code 1863, § 3056; Code 1868, § 3068; Code 1873, § 3123; Code 1882…

In all cases of a mistake of fact material to the contract or other matter affected by it, if the complaining party applies within a reasonable time, equity will grant relief. History. — Orig. Code 1863, § 3058; Code 1868, § 3070; Code 1873, § 3125; Code 1882, § 3125; Civil Code …

If the form of conveyance is, by accident or mistake, contrary to the intention of the parties in their contract, equity shall interfere to make it conform thereto. History. — Orig. Code 1863, § 3047; Code 1868, § 3059; Code 1873, § 3114; Code 1882, § 3114; Civil Code 1895, § 397…

Accident or mistake in the execution of a power or causing the defective execution of the power will be remedied in equity. History. — Orig. Code 1863, § 3061; Code 1868, § 3073; Code 1873, § 3128; Code 1882, § 3128; Civil Code 1895, § 3986; Civil Code 1910, § 4583; Code 1933, § …

Mere ignorance of the law on the part of the party himself, where the facts are all known and there is no misplaced confidence and no artifice, deception, or fraudulent practice is used by the other party either to induce the mistake of law or to prevent its correction, shall not a…

Ignorance of a fact by both parties shall not justify the interference of equity; nor shall a mistake in judgment or opinion merely as to the value of property authorize such interference. History. — Orig. Code 1863, § 3060; Code 1868, § 3072; Code 1873, § 3127; Code 1882, § 3127…

If a party, by reasonable diligence, could have had knowledge of the truth, equity shall not grant relief; nor shall the ignorance of a fact known to the opposite party justify an interference if there has been no misplaced confidence, misrepresentation, or other fraudulent act. H…

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 is confined to the par…

Equity will not reform a written contract unless the mistake is shown to be the mistake of both parties; but it may rescind and cancel upon the ground of mistake of fact material to the contract of one party only. History. — Civil Code 1895, § 3982; Civil Code 1910, § 4579; Code …

(a) The negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence, the absence of which would be a violation of legal duty. (b) Relief may be granted even in cases of negligence by the complainant if it appears that the other party has …

Equity will not interfere to relieve against accidents or mistakes of mere volunteers; but, if a contract is actually executed, all the rights growing out of it against or in favor of any one will be enforced. History. — Orig. Code 1863, § 3049; Code 1868, § 3061; Code 1873, § 31…

(a) Fraud may be actual or constructive. (b) Actual fraud consists of any kind of artifice by which another is deceived. Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to …

Misrepresentation of a material fact, made willfully to deceive or recklessly without knowledge and acted on by the opposite party or made innocently and mistakenly and acted on by the opposite party, constitutes legal fraud. History. — Orig. Code 1863, § 3105; Code 1868, § 3117;…

Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case. History. — Orig. Code 1863, § 3106; Code 1…

Anything which happens without the agency or fault of the party affected by it, tending to disturb and confuse his judgment or to mislead him, of which the opposite party takes an undue advantage, is in equity a surprise and is a form of fraud for which relief is granted. History…

Any attempt to encroach upon the business of a trader or other person by the use of similar trademarks, names, or devices, with the intention of deceiving and misleading the public, is a fraud for which equity will grant relief. History. — Orig. Code 1863, § 3112; Code 1868, § 31…

Fraud may be consummated by signs or tricks, or through agents employed to deceive, or by any other unfair way used to cheat another. History. — Orig. Code 1863, § 3107; Code 1868, § 3119; Code 1873, § 3176; Code 1882, § 3176; Civil Code 1895, § 4028; Civil Code 1910, § 4625; Cod…

Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence. History. — Orig. Code 1863, § 2715; Code 1868, § 2709; Code 1873, § 2751; Code 1882, § 2751; Civil Code 1895, § 4029; Civil Code 1910, § 4626; Code …

Chase Manhattan Mortg. Corp., No. 1:07-CV-0121-JOF, 2008 U.S. Dist. LEXIS 76595 (N.D. Ga. Sept. 15, 2008). Homeowner sufficiently alleged a claim for breach of contract against the homeowner’s mortgage lender based on a promise in the security agreement that the lender would fore…

Where, by the act or consent of parties or the act of a third person or of the law, one person is placed in such relation to another that he becomes interested for him or with him in any subject or property, he is prohibited from acquiring rights in that subject or property which…

Equity jurisdiction over matters of account shall extend to: (1) Mutual accounts growing out of privity of contract; (2) Cases where accounts are complicated and intricate; (3) Cases where a discovery or writ of ne exeat is prayed and granted; (4) Cases where the account is of a …

In cases of joint, joint and several, or several liabilities of two or more persons, where all are equally bound to bear the common burden and one has paid more than his share, he shall be entitled to contribution from the others; and whenever the circumstances are such that an a…

Apportionment of a contract or of rent or hire may, from peculiar circumstances rendering the common-law remedy incomplete, become the subject of equitable jurisdiction. History. — Orig. Code 1863, § 3067; Code 1868, § 3079; Code 1873, § 3134; Code 1882, § 3134; Civil Code 1895, …

Where several persons are interested in an estate as tenants for years, or for life, or in remainder or reversion, and encumbrances are to be discharged, the equitable division of the burden, according to the several interests, shall be a question for equitable interference. Hist…

If a party who has charge of the property of others shall so confound it with his own that the line of distinction cannot be drawn, all the inconvenience shall be thrown upon him who causes the confusion; and he shall distinguish his own property or lose it. History. — Orig. Code…

A petition for an accounting need not offer to pay a balance if found against the complainant. History. — Orig. Code 1863, § 3069; Code 1868, § 3081; Code 1873, § 3136; Code 1882, § 3136; Civil Code 1895, § 3995; Civil Code 1910, § 4592; Code 1933, § 37-307.

(a) Assets are either legal or equitable. Legal assets are such as may be reached by the ordinary process of law. Equitable assets are such as can be reached only through the intervention of equity. (b) Legal assets, when properly before the court, shall be distributed according …

Equity will not interfere with the regular administration of estates, except upon: (1) Application of the representative: (A) For construction and direction; or (B) For marshaling the assets; or (2) Application of any person interested in the estate where there is danger of loss …

In cases of difficulty in construing wills, in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, the representative may ask the direction of the court, but not on imaginary difficulties or from excessive cauti…

In all cases where legal difficulties arise as to the distribution of assets in payment of debts or where from any circumstances the ordinary process of law would interfere with the due administration of an estate, without fault on the part of the representative of the estate, a …

In marshaling assets, the court shall look to the equities of the creditors and, where cases arise for election, shall compel the parties to elect. History. — Orig. Code 1863, § 3078; Code 1868, § 3090; Code 1873, § 3147; Code 1882, § 3147; Civil Code 1895, § 4002; Civil Code 191…

Creditors’ petitions may be filed at the instance of any creditor, the privilege being extended to all to appear and become parties within a reasonable time. History. — Orig. Code 1863, § 3079; Code 1868, § 3091; Code 1873, § 3148; Code 1882, § 3148; Civil Code 1895, § 4003; Civil…

Equitable assets may be reached by a creditor in every case where he shows that there is danger of not being satisfied out of legal assets. History. — Orig. Code 1863, § 3084; Code 1868, § 3096; Code 1873, § 3153; Code 1882, § 3153; Civil Code 1895, § 4004; Civil Code 1910, § 4601…

(a) In all equity cases in which assets of either or both parties are being administered, marshaled, or otherwise disposed of by the court, upon motion of either party or of the court at least 60 days before the term for trial, an order shall be passed bearing the title of the ca…

Joint assets shall be applied to joint debts, and individual assets to individual debts; but, when the joint assets are exhausted, the joint debts may come upon individual assets, the individual debts, without regard to relative dignity as compared with the joint debts, being firs…

Powers, especially of appointment, being always founded on trust or confidence, are peculiarly subjects of equitable supervision. History. — Orig. Code 1863, § 3097; Code 1868, § 3109; Code 1873, § 3166; Code 1882, § 3166; Civil Code 1895, § 4017; Civil Code 1910, § 4614; Code 193…

Equity may not compel a party, having a discretion, to exercise a power of appointment. History. — Orig. Code 1863, § 3098; Code 1868, § 3110; Code 1873, § 3167; Code 1882, § 3167; Civil Code 1895, § 4018; Civil Code 1910, § 4615; Code 1933, § 37-602.

In all cases where no discretion is allowed or the discretion allowed is abused, equity may compel a faithful execution of the power. History. — Orig. Code 1863, § 3102; Code 1868, § 3114; Code 1873, § 3171; Code 1882, § 3171; Civil Code 1895, § 4022; Civil Code 1910, § 4619; Cod…

Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised. In the absence of stipulations to the contrary in the instrument, the time, place, and manner of sale shall be that pointed out for public sales. Unless t…

Unless expressly limited in a will, deed, or other instrument creating a power of sale or unless specifically otherwise provided in such instrument, a power of sale conferred upon an executor, trustee, guardian, or attorney in fact shall authorize a private sale by the executor, t…

Unless expressly limited in an instrument creating a power of sale or unless specifically otherwise provided in the instrument, the power of sale conferred upon an executor, trustee, or guardian may be exercised and executed by an administrator with the will annexed or by a succes…

Any person holding a power of appointment, general or special, whether exercisable by deed or by will only or otherwise, and whether reserved by the holder of the power or conferred upon him by another, may, as to all or any part of the property covered by the power of appointmen…

Any release, relinquishment, or covenant referred to in Code Section 23-2-117 shall be in writing, signed by the person holding the power, and delivered to anyone interested in the power, including any person in the limited class, or to any fiduciary holding the property or any pa…

No fiduciary holding or distributing any property subject to a power of appointment as referred to in Code Section 23-2-117 shall be deemed to have notice of the release, relinquishment, or covenant or be bound thereby unless and until a copy thereof is delivered to the fiduciary. …

Specific performance of a contract, if within the power of the party, will be decreed, generally, whenever the damages recoverable at law would not be an adequate compensation for nonperformance. History. — Orig. Code 1863, § 3118; Code 1868, § 3130; Code 1873, § 3186; Code 1882, …

(a) The specific performance of a parol contract as to land shall be decreed if the defendant admits the contract or if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandone…