Morris v. Fain, (No. 6068.)

• Decision Date: 17 February 1928
• Docket Number: (No. 6068.)
• Citation: 142 S.E. 119,165 Ga. 879
• Parties: MORRIS. v. FAIN et al.
• Court: Georgia Supreme Court

165 Ga. 879

142 S.E. 119

MORRIS.

v.FAIN et al.

(No. 6068.)

Supreme Court of Georgia.

Feb. 17, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Floyd County; C. E. Roop, Judge.

Action by C. W. Morris, administrator of the estates of Asa Johnson and another, deceased, against Charles Fain and another. Judgment for defendants, plaintiffs motion for new trial was overruled, and plaintiff brings error. Reversed.

Harris & Harris, of Rome, for plaintiff in error.

Porter & Mebane and John Camp Davis, all of Rome, for defendants in error.

HILL, J. A paper was executed as follows:

"Georgia, Floyd County.

"This indenture of agreement, made this the 9th day of June, 1924, between Asa Johnson and Katie Johnson, parties of the first part, of Floyd county, Georgia, and Charles Fain and Ella Fain, of the second part, of said county, witnesseth: That, for the consideration hereinafter expressed, parties of the first part hereby sell and convey to the parties of the second part the following property, to wit: The house and lot on Ross street where parties of the first part reside, the same being a lot 156 feet by 56 feet, with a three-room house thereon; also all household and kitchen furniture and any and all personal property belonging to said parties of the first part. To have and to hold said property in fee simple. Reserving and excepting to parties of the first part the joint use of said described property with said parties of the second part so long as both or either of the parties of the first part shall live. The consideration of this deed of conveyance is the care and boarding of parties of the first part by the parties of the second part so long as either of the first parties shall live; two years of such care already having been given by parties of the second part, which is made a part of this consideration. Should parties of the second part fail to continue to support or provide herein, then the consideration herein shall fail pro tanto.

"In witness whereof the said parties of the first part have hereunto set their hands and seals this June 9th, 1924.

"Asa Johnson,

her

"Katie X Johnson,

mark

"Witness:

"Ruth Pierce.

"John Camp Davis.

"N. P. Floyd County, Ga."

This paper was duly recorded. The grantors, Asa Johnson and Katie Johnson, were husband and wife. Asa Johnson died on January 18, 1925, and Katie Johnson died soon thereafter. Charles W. Morris was appointed administrator of the estates of Asa Johnson and Katie Johnson; and on December 22, 1925, he instituted suit against the grantees, Charles Fain and Ella Fain, to cancel the deed. The grounds alleged for cancellation were that the contract was unilateral, because the grantees did not sign the same or bind themselves in any way to fulfill any part of the contract; that at the time of signing the contract both of the defendants were insolvent, and neither of them had any financial means of carrying out their part of the contract; that neither of them, before the death of Asa Johnson and Katie Johnson, performed their part of the contract by caring for either of the decedents, nor did defendants pay the burial expenses of the deceased; that the defendants deceived and defrauded the decedents into allowing them to enter into possession of said property, by taking advantage of their mental condition, and not making known to them that they (the defendants) had no way or means for caring for decedents; and that the decedents were unable to make the contract, on account of mental incapacity. The defendants filed a demurrer to the petition. The special grounds of demurrer were: (1) As a matter of law, the contract is...