Opinion
(January Term, 1868.)
Under Rev. Code, ch. 32, s. 3, r. 5, it is error to set down a cause for hearing until the second term after replication is filed, whether the testimony proposed to be offered by the defendant be material or otherwise.
BILL to correct a deed, filed Spring Term, 1867, of MACON, when an answer was put in and replication thereto taken. At Fall Term, 1867, the cause was set for hearing and heard by Buxton, J., who rendered a decree in favor of the plaintiff. The defendant appealed.
Phillips Battle, for the appellant.
Merrimon, contra.
The bill set forth that in 1855 the defendant agreed to purchase a tract of land from the ancestor of the plaintiffs at $10 per acre; that in accordance with the contract a survey was had, and payment made and a deed executed according thereto; that the tract contained near double the quantity of land paid for, and that the error was caused by a mistake or fraud. The answer denied fraud, and that the defendant was aware of any mistake, and relied upon the lapse of time since the execution of the deed as a bar.
At the same term an order of survey was made, and at the next term the surveyors filed their report showing that the deed embraced 15 1/2 acres more than appeared from the former survey. The (340) defendant asked leave to take testimony to show that his bargainor knew of "the excess of quantity of land sold" a short time after the execution of the deed. His Honor refused, because the answer contained no allegation to that effect, and set the cause for hearing.
His Honor erred in not allowing the defendant until the second term after issue was joined by the putting in of a replication to the answer, to take testimony, and in setting the cause down for hearing, hearing it and making a decree at the first term after the joining of such issue. See Rev. Code, ch. 32, sec. 3, rule 5.
The order appealed from must be
PER CURIAM. Reversed.
(341)