Brinson v. Hester, 12030.

• Decision Date: 17 March 1938
• Docket Number: No. 12030.,12030.
• Parties: BRINSON. v. HESTER.
• Court: Georgia Supreme Court

185 Ga. 761

196 S.E. 412

BRINSON.
v.
HESTER.

No. 12030.

Supreme Court of Georgia.

March 17, 1938.

Syllabus by Editorial Staff.

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 Bain-bridge, for defendant in error.

Syllabus Opinion by the Court.

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

[196 S.E. 413]

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. Atlanta 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.l914A, 880; Jackson v. Bates, 178 Ga. 723, 725, 174 S.E. 352.

3. "Great inadequacy of consideration, joined with great...