Brinson v. Hester

• Citation: 196 S.E. 412,185 Ga. 761
• Decision Date: 17 March 1938
• Docket Number: 12030.
• Parties: BRINSON v. HESTER.
• Court: Supreme Court of Georgia

196 S.E. 412

185 Ga. 761

BRINSON v. HESTER.

No. 12030.

Supreme Court of Georgia

March 17, 1938

Error from Superior Court, Decatur County; B. C. Gardner, Judge.

Suit by A. N. Hester, administrator, against M. C. Brinson to cancel a deed of the intestate. To review a judgment for plaintiff defendant brings error.

Reversed.

M. E. O'Neal and G. G. Bower, both of Bainbridge, for plaintiff in error.

D. R Bryan and H. G. Bell, both of Bainbridge, for defendant in error.

Syllabus OPINION.

BELL Justice.

This was a suit to cancel a deed upon the following grounds: (a) Mental incapacity of the grantor; (b) that the grantor was induced to make the deed by the fraudulent promise of the grantee to maintain and support the grantor for the remainder of her life. The defendant denied the material allegations of the petition. After verdict for the plaintiff and the refusal of a new trial, the defendant excepted. Held:

1. A promise by a grantee to maintain and support the grantor made as an inducement or consideration for the execution of a deed by the latter, does not constitute fraud, so as to authorize a cancellation of the deed, unless the promise was made with a present intention on the part of the promisor not to comply with it. Attlanta Skirt Mfg. Co. v. Jacobs, 8 Ga.App. 299(3), 68 S.E. 1077; Concealed Bed Corp. v. Williams, 36 Ga.App. 462, 137 S.E. 275; Ryals v. Livingston, 45 Ga.App. 43(3), 50, 163 S.E. 286; Crawford v. Davison-Paxon Co., 46 Ga.App. 161, 166 S.E. 872. A mere failure to comply with the promise would be insufficient to establish such fraudulent intent, Brooks v. Pitts, 24 Ga.App. 386, 100 S.E. 776; and in such case the remedy of the grantor would be an action for damages, and not a suit for cancellation, in the absence of insolvency of the promisor or other equitable grounds. Brand v. Power, 110 Ga. 522, 36 S.E. 53; Thompson v. Lanfair, 127 Ga. 557, 56 S.E. 770; Davis v. Davis, 135 Ga. 116, 69 S.E. 172; Fletcher v. Fletcher, 158 Ga. 899(3), 124 S.E. 722.

2. In the instant case there was no evidence that the promise to maintain and support the grantor, if breached, was made with an intention to defraud, as defined in the preceding note, and the court erred in charging the jury upon the subject of fraud. Central Georgia Power Co. v. Cornwell, 139 Ga. 1(2), 76 S.E. 387, Ann.Cas.1914A, 880; Jackson v. Bates, 178 Ga. 723, 725, 174 S.E. 352.

3. 'Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify equity in setting aside a sale or other contract.' Code, § 37-710. Questions of value are peculiarly for the determination of the jury where there is any data in evidence upon which they may legitimately exercise their 'own knowledge or ideas.' Baker v Richmond City Mill Works, 105 Ga. 225(2), 31 S.E. 426, 427. Under this rule as applied to the evidence in regard to the value of the property and the agreed consideration, and in view of the evidence as to the mental condition of the grantor, it cannot be said that a charge in the language of the quoted section was unwarranted by the evidence. Nor is it cause for a reversal that the charge may not have been warranted by the pleadings, since the evidence related to the same cause of action and was admitted...