Brand v. Power

• Citation: 36 S.E. 53,110 Ga. 522
• Parties: BRAND v. POWER.
• Decision Date: 09 April 1900
• Court: Supreme Court of Georgia

36 S.E. 53

110 Ga. 522

BRAND v. POWER.

Supreme Court of Georgia

April 9, 1900

Syllabus by the Court.

1. An absolute deed of conveyance will not, at the instance of the grantor, be canceled merely because of a breach by the grantee of a promise made by him, in consideration of which the deed was executed.

2. An equitable petition for the cancellation of a deed, based solely upon a ground of the nature above indicated, is not amendable, so as to make a case for cancellation either on the ground that the grantor was mentally incapable of contracting, or was induced by fraud to execute the conveyance.

Error from superior court, Cobb county; George F. Gober, Judge.

Bill by Eliza Brand against J. T. M. Brand. On the death of plaintiff, W. R. Power, administrator, was substituted. Judgment for plaintiff, and defendant brings error. Reversed.

Geo. D Anderson and R. N. Holland, for plaintiff in error.

W. R Power, for defendant in error.

LUMPKIN P.J.

Mrs Eliza Brand brought an equitable petition against her son, J T. M. Brand, for the cancellation of a deed whereby she conveyed to him two lots of land. Pending the action she died. W. R. Power, her administrator, was made a party plaintiff, and the case proceeded in his name. The petition alleged that "at the time of making said deed it was understood and agreed between the parties thereto that the said J. T. M. Brand would take care of, provide for, and support petitioner on account of making said deed," but that he had entirely failed and refused to comply with this undertaking. The defendant demurred to the petition generally, and also specifically on the ground that a common-law suit for a breach of contract was the plaintiff's proper remedy. The demurrer was overruled, and the defendant excepted. Over his objection, the court allowed an amendment to the petition, which, in substance, alleged that at the time of executing the deed Mrs. Brand was mentally incapable of contracting, and that she had been induced to sign the deed by various acts and sayings on the part of the defendant, which constituted a fraud upon her. The objections to this amendment were that there was nothing in the original petition to amend by, and that the amendment set forth a new and distinct cause of action. The case proceeded to trial, and resulted in a verdict for the plaintiff. A motion for a new trial was duly filed by the defendant, and the same was overruled. His bill of exceptions assigns error upon all of the above-mentioned rulings. We shall not, however, undertake to deal with the...