Douglas v. Sumner, 19569

• Decision Date: 12 March 1957
• Docket Number: No. 19569,19569
• Citation: 97 S.E.2d 122,213 Ga. 82
• Parties: Wallace A. DOUGLAS v. Mrs. Billie SUMNER.
• Court: Georgia Supreme Court

Page 122

97 S.E.2d 122

213 Ga. 82

Wallace A. DOUGLAS v. Mrs. Billie SUMNER.

No. 19569.

Supreme Court of Georgia.

March 12, 1957.

Syllabus by the Court

1. The plaintiff's testimony with reference to his alleged incapacity to execute the deed by reason of intoxication did not make an issue of fact for consideration by the jury.

2. No facts were testified to by the plaintiff to sustain the allegations that a trust was created.

3. The plaintiff's testimony would not support a recovery in his behalf, and the court did not err in granting a nonsuit.

Wallace Douglas filed a petition against Mrs. Billie Sumner for the cancellation of a deed. He alleged: The plaintiff is the owner of described land. There appears of record in the office of the clerk of the superior court a deed to the land, purported to have been executed by the plaintiff to the defendant. The deed was executed without any present or future consideration, and the plaintiff has never parted with possession of the land, and no title has ever passed. 'Said deed was executed by petitioner to defendant to hold said property in trust for him and that she would deed same back to him at his request all of which said defendant now refuses to do.' The record of the deed operates as a cloud upon the plaintiff's title. It is utterly void, having been executed without any consideration. By reason of the purported deed, the defendant is in position to encumber the land or convey it, to the hurt and loss of the plaintiff.

The prayers were for process; for cancellation; that the defendant be restrained and enjoined from conveying, encumbering, or disposing of the property; and for other relief.

Attached to the petition as an exhibit is a copy of the deed, which is a warranty deed in form, dated January 14, 1956, reciting a consideration of $500, and properly witnessed and recorded.

By amendment the plaintiff alleged: 'At the time of the execution of the deed to the defendant he was not mentally capable of executing the same for the reason he was at the time for several months prior thereto in a drunken condition, that for several months he had been constantly under the influence of liquor, and during said time defendant knowing that he was addicted to drinking whiskey, carried him to purchase whiskey and kept him in a drunken condition until he did not possess sufficient mind and reason equal to a full understanding of the nature of any act done by him. * * * Petitioner further shows that he had ever faith and confidence in defendant and he believed that she would deed said lands back to him upon request as she had agreed to do, and too being told by defendant that he could not sell his timber without deeding land to someone else and not being capable of reasoning for himself executed said deed to defendant.'

There was no demurrer to the petition as amended. On the trial of the cause, at the conclusion of the plaintiff's testimony, he rested his case. The trial judge granted a nonsuit, and the exception is to that judgment.

Emory L. Rowland, Wrightsville, for plaintiff in error.

W. C. Brinson, Wrightsville, for defendant in error.

HEAD, Justice.

1. In the present case the plaintiff's testimony was so vague and contradictory that it is impossible to determine upon which of two theories (each contradictory of the other) he sought to rely for a cancellation of the deed. By amendment he alleged that for several months prior to the execution of the deed, and at the time of its execution, he was not mentally capable of executing a deed by reason of intoxication.

'A contract made by a drunken person is not void, though the intoxication be brought about by the other party, but is merely voidable at his election, and may be ratified by him expressly or by conduct inconsistent with its rescission.' Code, § 20-207.

Upon direct examination, the plaintiff testified that, at the time he executed the deed, he did not realize that he was passing title to the defendant. He testified that he did not have any intention of passing title to her, and upon being asked, 'Why did you...