Pantone v. Pantone, 16878

• Decision Date: 09 January 1950
• Docket Number: No. 16878,16878
• Citation: 57 S.E.2d 77,206 Ga. 305
• Parties: PANTONE et al. v. PANTONE.
• Court: Georgia Supreme Court

Page 77

57 S.E.2d 77

206 Ga. 305

PANTONE et al. v. PANTONE.

No. 16878.

Supreme Court of Georgia.

Jan. 9, 1950.

Syllabus by the Court.

1. Where a deed is sought to be set aside on the ground of lack of mental capacity on the part of the grantor to execute a valid contract, the issue as to contractual capacity is to be determined by the condition of the grantor's mind at the time the deed was executed; but, in determining such an issue, it is permissible to receive and consider evidence as to the state of the grantor's mind for a reasonable period both before and after the transaction under investigation; and evidence as to such a previous state of mind or subsequent state of mind may be sufficient to authorize a jury to find against contractual capacity at the time the deed was executed, despite evidence of witnesses who were present at the time of execution and testified that the grantor did have such capacity.

2. While direct and positive testimony, given by an unimpeached witness as to the existence of facts apparently within his own knowledge, and not in itself incredible, impossible, or inherently improbable, cannot be arbitrarily rejected by a jury or other trier of facts upon the mere surmise that it perhaps might not be in accord with the truth, yet, where such testimony is contradicted by proof of facts or circumstances that could be taken as incompatible with such testimony, the question of which theory thus presented by conflicting evidence will be accepted is a question to be determined by the jury or other trier of facts.

3. Under our procedure it is the province of the jury to pass upon issues of fact, and determine where the preponderance of evidence lies, and if there be some evidence to support the verdict, the judgment of the trial court, overruling a motion for a new trial based on the ground that the verdict was contrary to the evidence, will not be disturbed by this court.

The plaintiffs, who were brothers, and heirs of a deceased brother, of Earnest Pantone, also deceased, brought their suit in ejectment against Mrs. Mae Mitchell Pantone, widow of Earnest Pantone.

The record discloses that Earnest Pantone became ill in December, 1947, and went to the Veterans Hospital Forty-Eight, in Atlanta, Georgia, on February 11, 1948, suffering from tuberculosis, diabetes, and arterio-sclerosis.

On June 24, 1948, it is alleged, he executed a deed to his four brothers conveying to them certain real estate known as the Pantone home place in Sumter County. On August 2, 1948, Earnest Pantone died. After that date, the plaintiffs brought their suit in ejectment against Mrs. Mae Mitchell Pantone to recover the property described in the deed of June 24, 1948, which property was in the possession of the defendant. The defendant, by her answer to the ejectment suit, attacked the deed of June 24, 1948, on the grounds of mental incapacity on the part of the grantor to execute a valid conveyance, and undue influence and fraud practiced upon him by the grantees. The case proceeded to trial, and on June 22, 1949, resulted in a verdict and judgment in favor of the defendant. The plaintiffs duly presented their motion for a new trial based on the general grounds, and subsequently amended this motion by the addition of three other grounds, which were amplifications of the general grounds.

It is contended, in ground 1 of the amended motion, that, under the testimony of the witnesses, L. Clark Hancock, Claude N. Morris, and Clifford Pantone, therein set out, a verdict in favor of the plaintiffs was demanded, in that--as contended by the plaintiffs--this testimony of these witnesses, to the effect that they were present at the time of the execution of the deed and that Earnest Pantone was rational, of sound mind, knew what he was doing at the time of the execution of the deed on June 24, 1948, and was mentally capable of executing a valid contract on that occasion, was direct, uncontroverted by other evidence, and was superior to any indirect and opinioned evidence introduced by the defendant.

In ground 2 of the amended motion, it is insisted that, under this same testimony of the same three named witnesses, a verdict was demanded in favor of the plaintiffs, for that this uncontroverted direct testimony was superior to any circumstances or opinioned evidence, showing that there was no duress or coercion exercised upon Earnest Pantone to make him sign the deed in question.

In special ground 3, it is stated that the following stipulation, appearing in the brief of evidence, was made:

'It is stipulated between counsel that on June 24, 1948, at the hour of two p. m., Earnest Pantone's temperature, was 99; that at the hour of seven o'clock, p. m., it was 101-1/5; that, on that date at the hour of two o'clock, his pulse was 93, and at seven o'clock his pulse was 113; and that, on that date at the hour of two o'clock, his respiration was 22, and at the hour of seven o'clock on that date it was 22.'

It is contended in this ground that it is a matter of common knowledge that a temperature of 99, a pulse rate of 93, and a respiration rate of 22 are so near a normal condition that there could have been no doubt about the sanity of Earnest Pantone when the deed was executed; and that, since there were no doctors' or nurses' entries indicating that Earnest Pantone was irrational at any time on June 24, 1948, this stipulation, together with the absence of any other record of irrationality, was superior to any indirect or circumstantial evidence to the contrary, and demanded a verdict for the plaintiffs.

It is further contended by the plaintiffs that the evidence as a whole demanded a verdict for them, and that this court should reverse the judgment of the trial court overruling the motion for a new trial as amended.

H. B. Williams, Americus, Dykes & Dykes, Americus, for plaintiffs in error.

Fort & Fort, Americus, R. L. Le Sueur, Americus, for defendant in error.

HAWKINS, Justice (after stating the foregoing facts.)

We cannot agree with the plaintiffs that the evidence in this case demands a verdict in their favor. While it is true that in Lankford v. Holton, 187 Ga. 94, 102, 200 S.E. 243, 249, this court held: 'Direct and positive testimony, as distinguished from testimony circumstantial, opinionative, or actually negative in character, which is given by an unimpeached witness as to the existence of a fact apparently within his own knowledge, which is not in itself incredible, impossible, or inherently improbable, and which is not contradicted directly or by proof of facts or circumstances that could be taken as incompatible with such testimony, can not be arbitrarily rejected by a jury or other trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth'; and that in Thomas v. Lockwood, 198 Ga. 437, 31 S.E.2d 791, it was held that, applying the ruling made in the Lankford case to the evidence in that case, it was insufficient to show incapacity on the part of the grantor, and that the verdict for the plaintiff cancelling the deed was contrary to the evidence and without evidence to support it, the latter decision was not unanimous, Mr. Justice Atkinson dissenting on the ground that the evidence there made a question for the jury to determine. As we view the evidence in this case, the decisions there made are not controlling here. It is true that neither of the witnesses named in the first and second grounds of the amended motion was impeached, and that their testimony, to the effect that Earnest Pantone at the time of the execution of the deed was sane, and was mentally capable of executing a valid contract, was direct and positive, and as to the existence of facts apparently within their knowledge, and that this testimony was not in itself incredible, impossible, or inherently improbable; yet it was contradicted by proof of facts and circumstances that could be taken as incompatible with such testimony, some of these facts and circumstances shown by the record being that this is the third appearance of litigation in this court between these parties concerning this land. Pantone v. Pantone, 202 Ga. 733; 44 S.E.2d 548; Pantone v. Pantone, 203 Ga. 347, 46 S.E.2d 498. It appears from the record in this case that there was much bitterness on the part of Earnest Pantone towards his brothers, the plaintiffs, at the time he entered the hospital on February 11, 1948, as the result of this previous litigation, which had not terminated at that time. The deed under which the plaintiffs claim the property in dispute was executed by Earnest Pantone on June 24, 1948, and recited 'that the said party of the first part, for and in consideration of the sum of $1.00 and the further consideration that the original deed from the grantees, my brothers, to me dated July 23, 1940, recorded August 17, 1940, in Deed Book 24, page 425, was that I should retain the property for life and that it should be their property, I do hereby bargain, sell, alien, and convey unto all the said grantees jointly, their heirs and assigns' the property in dispute, thus carrying a recitation...