57 S.E.2d 326 (Ga. 1950), 16879, Smith v. Merck

Docket Nº:16879.
Citation:57 S.E.2d 326, 206 Ga. 361
Opinion Judge:ALMAND, Justice.
Party Name:SMITH v. MERCK.
Attorney:E. C. Brannon, Gainesville, Smith & Stephens, Gainesville, for plaintiff in error. Dunlap & Dunlap, Gainesville, Wm. P. Whelchel, Gainesville, Victor Royal, Buford, for defendant in error.
Case Date:January 12, 1950
Court:Supreme Court of Georgia

Page 326

57 S.E.2d 326 (Ga. 1950)

206 Ga. 361




No. 16879.

Supreme Court of Georgia.

January 12, 1950

Page 327

Syllabus by the Court.

1. A petition seeking cancellation of a deed executed by the plaintiff to the defendant on the ground of false and fraudulent representations--where the allegations show that a confidential relation existed between the parties, and that by reason of poverty the plaintiff was unable to return or offer to return any benefit she might have received, and offering to do equity, in view of all the allegations in the petition--

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stated a cause of action as against a general demurrer.

2. The court properly overruled a motion for a mistrial, made on the ground that counsel for the plaintiff, on cross-examination of a witness for the defendant, in reply to a question propounded by the court as to counsel's reasons for asking the question which had been objected to by counsel for the defendant, stated what he (counsel) contended the witness had said to a third person, where it appears that the objection of counsel for the defendant was sustained.

3. The portion of the court's charge to the jury on which error was assigned in ground 5 of the motion for a new trial, though inapt and not authorized by the pleadings, when taken in connection with the verdict, showed that no harm or injury was done to the defendant, and will not require the grant of a new trial.

4. Where the trial judge in the exercise of a sound discretion denies a new trial, and where no substantial error of law appears from the record, and the evidence, though slight, is sufficient to authorize the verdict returned, such judgment will not be disturbed.

Mrs. J. Carlton Merck filed an equitable petition against Ed Smith, praying for a decree cancelling and rescinding a warranty deed executed by her on March 19, 1948, conveying a certain house and lot in Gainesville to the defendant. The original petition alleged substantially: In January, 1948, the plaintiff entered into a lease with the defendant for a term of five years for several rooms in her home (the subject-matter of this suit). The defendant, upon becoming aware of an indebtedness the plaintiff owed to one A. C. Maynard in the sum of $2100, secured by a loan deed on her home, represented to her that the said Maynard thought the plaintiff was insane, and was greatly worried for fear of loss of his money, and wanted his money immediately. The defendant became exceedingly solicitous of the plaintiff, and represented to her that he desired to help her; that he knew she was an old lady, 'and that he would attempt to help her borrow the money necessary to pay the indebtedness to said [206 Ga. 362] Maynard;' and in March, 1948, the defendant represented to her that he thought he knew of a man who would lend some money on her property, 'but that it would first be necessary to transfer the property to him.' One amendment to the petition added to this quotation, 'or to some one else by means of a loan deed.' The petition further alleged: The defendant represented that the consideration could be anything, and suggested it should be $5,000 or $10,000. The plaintiff relied on the false representations made by the defendant, and instructed a local attorney to check the deed records to determine the description of her property, and to prepare a deed, and the defendant went by the attorney's office and secured a warranty deed, wherein the plaintiff conveyed her property to the defendant upon an alleged consideration of $10,000; and 'while representing to her that it was necessary for this to be done before she could obtain the money to pay Maynard, defendant urged her to sign the deed.' The plaintiff was, by reason of her age and long illness, incapable of comprehending and understanding the fraudulent scheme presented to her by the defendant. The defendant did not pay or agree to pay the plaintiff any part of the $10,000 stated as the consideration in the deed, but led her to believe that such transaction was necessary in order that she might borrow some money on her property. The defendant borrowed $3,100 from one Gilstrap and executed to him a deed to secure the debt, and out of the sum so borrowed turned over to the plaintiff $3,000, which he said was the amount of money he was able to obtain. The plaintiff used part of this amount to pay off the Maynard indebtedness. The defendant subsequently borrowed $1,000 from one Pethel and Southern Finance Company, and gave to them a deed to secure debt conveying the plaintiff's property as security. The plaintiff knew nothing of the effect of those acts until June, 1949, when, after she had agreed to sell her property to one Ward for $14,000, it was discovered that the title to her property

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was in the defendant. The defendant obtained the property through misrepresentations, fraud, and undue influence. The plaintiff is ready and willing to execute a security deed to Gilstrap in the sum of $3,100, or to pay the loan in full. The defendant is endeavoring to sell the property as his own. The prayers were that the deed from the plaintiff to Ed [206 Ga. 363] Smith be decreed to be rescinded, null and void, and cancelled of record, and for a general judgment against the defendant for $1,000.

The defendant filed a general demurrer to this petition, and subsequently the plaintiff tendered another amendment, in which she alleged that the property in question was the only property she had of any substantial value; and that, on account of her financial inability, she was unable to make any tender or offer to the defendant any amount whatever, and will be able to restore only in the event the deed to the defendant is set aside and cancelled, but she offered to assume any legal indebtedness due to the defendant in equity and good conscience, if the property is restored to her ownership. The defendant objected to the allowance of said amendment on the grounds: (a) the petition did not contain enough to amend by; (b) the amendment was offered too late in point of time; and (c) it set forth no reason sufficient in law to relieve the plaintiff of the duty of offering to make restitution before instituting the suit. These objections were overruled, and the defendant filed exceptions pendente lite. Thereafter, the court overruled the defendant's general demurrer to the petition as amended, and exception pendente lite were filed to this order.

The defendant in his answer denied the material allegations of the petition. He denied the allegation that he had made any false or fraudulent representations to the plaintiff, and alleged that he had agreed, upon a consideration of $10,000, to purchase the property of the plaintiff, and that said consideration was to be paid by the assumption of indebtedness existing on the property, and by supporting and maintaining her during the remainder of her natural life.

The case proceeded to trial, and the jury returned a verdict 'in favor of plaintiff. Also $500 of thousand borrowed from Pethel,' and a decree was thereupon entered, giving the plaintiff a judgment against the defendant for $500, cancelling the deed from the plaintiff to the defendant, and vesting title to the property in the plaintiff subject to the two security deeds which the defendant had executed to Gilstrap and to Pethel and Southern Finance Company. The defendant thereupon filed a bill of exceptions, assigning error on the interlocutory orders and the order overruling his motion for a new trial as amended.

[206 Ga. 364] Counsel for the defendant in his brief strenuously urges that the verdict of the jury was contrary to the evidence, and therefore we briefly summarize the evidence adduced at the trial, as follows:

The plaintiff testified in substance: She was 76 years of age, and for about ten years had been ill with an enlarged weakened heart, dropsy, and high blood pressure, and she lived from the property in dispute. The first contact she had with the defendant concerning the house was the time she rented the same to him for five years at a rental of $25 per month, under his agreement to furnish her meals. Shortly after moving into her home he began to show interest in her business affairs, and told her that Maynard was going to beat her out of her property. She told the defendant that she wished she could borrow $3,000 somewhere to take up the Maynard mortgage, and he told her that, if she would fix him a deed to the place, he could get her $3,000, but did not say from whom he was going to get the money. She instructed Mr. Brannon, an attorney, to make deeds, one of warranty deed, and a loan deed. After seeing Brannon, the defendant came out and carried her to Skelton's filling-station. She did not have her glasses, and can not see without them. She thought the deed she signed was a loan deed. The defendant told her he wanted her to sign a loan deed, and she believed the deed she signed was a loan deed. The defendant was to get the money

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with the loan deed she supposed she had signed, and he did and brought her $3,000. The defendant did not pay her anything for the making of the deed, nor offer to pay her anything. After the deed was made, he came to her and said everyone in town was talking about her and said that she was crazy, and wanted to get some papers as to her sanity, and she got such papers from two people. She did not discover that she had made a warranty deed instead of a loan deed until some time later, when she was informed that her insurance had lapsed.

On cross-examination by Mr. Brannon, of counsel for the defendant, she testified: 'I did not tell you then I wanted a deed made to Ed; I said I wanted a loan deed made.'

E. P. Lockhart, testified, for the plaintiff that in his opinion the plaintiff's home place was reasonably worth $12,000. A...

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