Dillard v. Brannan

Decision Date07 September 1961
Docket NumberNo. 21314,21314
Citation217 Ga. 179,121 S.E.2d 768
PartiesJ. L. DILLARD v. Christine Crane BRANNAN et al.
CourtGeorgia Supreme Court

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.

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 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 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.' Brinson v. Hester, 185 Ga. 761, 196 S.E. 412, 413.

"Where the consideration recited in a deed is 'one dollar, furnishing grantor a home, food, medicine, doctor's bills, hospital bills, burial expenses, and all the other necessities of life during grantor's lifetime,' and the grantee has failed and refused to furnish the grantor the specified items, ordinarily the remedy of the grantor would be an action for damages. Code, § 85-902; Brinson v. Hester [supra]. * * * The grantor may maintain an equitable action to rescind the contract if the grantee is insolvent, Lindsey v. Lindsey, 62 Ga. 546; Wyatt v. Nailer, 153 Ga. 72(4), 111 S.E. 419; Fletcher v. Fletcher [supra]; Burkhalter v. DeLoach, 171 Ga. 384, 155 S.E. 513; or where fraud is employed by the grantee in the procurement of the deed, or there are other special facts which would make rescission by the grantor an appropriate relief. Wood v. Owen, 133 Ga. 751, 752(3), 66 S.E. 951; Morris v. Fain, 165 Ga. 879, 881, 142 S.E. 119.' Dumas v. Dumas, 205 Ga. 238, 52 S.E.2d 845.

'Where the consideration of a deed is a promise by the grantee to support the grantor, a breach by the grantee does not constitute fraud, so as to authorize cancellation, unless the promise was made with the present intention of the grantee not to comply with it. A mere failure to comply would be insufficient to establish a fraudulent intent. Brinson v. Hester, [supra] and citations.

'While the petition alleged that the grantee was insolvent, but further alleged that she would not be able to respond in damages except by virtue of holding the...

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18 cases
  • Moore v. Atlanta Transit System, Inc.
    • United States
    • United States Court of Appeals (Georgia)
    • 9 Noviembre 1961
    ...there is no genuine issue as to any material fact in the case. Scales v. Peevy, 103 Ga.App. 42, 46, 118 S.E.2d 193; Dillard v. Brannan, 217 Ga. 179, 121 S.E.2d 768. The 'genuine issue' test is not met unless the evidence offered is competent and admissible. Dyer v. MacDougall, 201 F.2d 265 ......
  • United States v. Williams
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 13 Mayo 1971
    ...sell and convey." Ga.Code Ann. § 29-111; accord, Perkins v. Rhodes, 1941, 192 Ga. 331, 15 S.E.2d 426, 427-428; see Dillard v. Brannan, 1961, 217 Ga. 179, 121 S.E.2d 768, 771; Ga.Code Ann. § 38-114. Williams' attempt to circumvent this statutory prohibition by seeking reformation must fail. ......
  • Holland v. Sanfax Corp., s. 39342
    • United States
    • United States Court of Appeals (Georgia)
    • 9 Mayo 1962
    ...issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Code Ann. § 110-1203; Dillard v. Brannan, 217 Ga. 179, 121 S.E.2d 768; Wells v. Wells, 216 Ga. 384, 116 S.E.2d 586; Moore v. Atlanta Transit System, 105 Ga.App. 70, 123 S.E.2d 693, supra; Scales......
  • Herring v. Pepsi Cola Bottling Co.
    • United States
    • United States Court of Appeals (Georgia)
    • 16 Mayo 1966
    ...2. Where there is no genuine issue as to a material fact, a summary judgment may be granted upon the pleadings alone. Dillard v. Brannan, 217 Ga. 179(3), 121 S.E.2d 768; Sanders v. Alpha Gamma Alumni Chapter, 106 Ga.App. 137, 139, 126 S.E.2d 545; Mingledorff v. Bell, 107 Ga.App. 685(1), 131......
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