Dillard v. Brannan, No. 21314

• Court: Supreme Court of Georgia
• Writing for the Court: MOBLEY
• Citation: 217 Ga. 179,121 S.E.2d 768
• Parties: J. L. DILLARD v. Christine Crane BRANNAN et al.
• Decision Date: 07 September 1961
• Docket Number: No. 21314

Page 768

121 S.E.2d 768 217 Ga. 179 J. L. DILLARD
v.
Christine Crane BRANNAN et al. No. 21314. Supreme Court of Georgia. Sept. 7, 1961.

Page 769

Syllabus by the Court

1. The answer of the defendant in error seeking to have a deed declared invalid for failure of consideration which alleged neither a present intention not to comply with the promise on the part of the grantee giving the promise in consideration for the deed, or insolvency on the part of the grantee, failed to raise a material issue of fact sufficient to preclude the grant of a summary judgment vesting title in the holder of the deed.

2. Where a grantor conveys land in which he has no interest and later acquires title, the after acquired title will vest in the first grantee as against subsequent purchasers.

3. Affidavits are not essential prerequisites to the granting of summary judgment where the pleadings disclose no genuine issue as to any material fact.

Page 770

[217 Ga. 180] This is a companion case to Dillard v. Dillard, 121 S.E.2d 766. The plaintiff in error here filed a separate bill of exceptions and excepted to the judgment on different grounds.

J. L. Dillard, plaintiff in error here, filed his answer to the motion for summary judgment of Christine Crane Brannan, defendant in error here, and in his answer alleged (1) that the deed executed by Mattie H. Curry to Christine Crane Brannan in 1952 was invalid as the grantor had no title to the subject real estate described in the deed, and (2) that the title of Mattie H. Curry received by the will of William E. Curry did not vest in Christine Crane Brnnan by estoppel by deed because there was a failure of consideration for the deed given her in 1952 in that the consideration for the conveyance consisted of an oral agreement, between the parties to the deed, that Christine Crane Brannan, in consideration for the deeded property, would build a home on the property, occupy the home until the death of the grantor, and care for the grantor until her death, which agreement was never kept by Christine Crane Brannan.

The plaintiff in error excepted to the grant of summary judgment on the ground that such a judgment was improperly granted in that there was a material issue of fact which should have been determined by a jury, i. e., whether or not Christine Crane Brannan's alleged failure to comply with the terms of the oral contract set out in the answer of the defendant in error amounted to a failure of consideration.

T. Milton Jones, Columbus, for plaintiff in error.

Foley, Chappell, Young & Hollis, Jack M. Thornton, Columbus, for defendants in error.

MOBLEY, Justice.

1. 'The [summary] judgment sought shall be rendered forthwith if * * * there is no genuine issue as to any material fact * * *.' Ga.L.1959, p. 234 (Code Ann. § 110-1203). (Italics ours.)

The portion of the Summary Judgment Act quoted above requires a genuine issue as to a material fact in order to preclude summary judgment, and while the plaintiff in error contends that the alleged failure on the part of the defendant in error to comply with the oral agreement set out in his answer would [217 Ga. 181] be such a material fact in that, if proved, it would render the 1952 deed invalid, the law does not support his contention.

'A promise by a grantee to maintain and support the grantor, made as an inducement or consideration for the...