Page v. Brown
| Decision Date | 16 June 1941 |
| Docket Number | 13677. |
| Citation | 15 S.E.2d 506,192 Ga. 398 |
| Parties | PAGE v. BROWN. |
| Court | Georgia Supreme Court |
and after receiving affirmative answer by counsel for plaintiff, in asking counsel if he did not introduce it for purpose of having it canceled, did not present a ground for new trial where the deed referred to by the court was the one as to which the petition prayed for cancellation.
W F. Moore and Vester M. Ownby, both of Atlanta, for plaintiff in error.
Judson Andrews, of Atlanta, for defendant in error.
The petition as amended alleged that the plaintiff, Myrl Brown held title to a house and lot in the possession of the defendant, Irene Page; that in April, 1938, the former owner executed to the plaintiff a deed to the property, which was recorded in July, 1938; that this grantor died on March 30 1939; that on March 22, 1939, which he was 'in the portals of death, the defendant procured the execution of a deed, signed by mark, from the said grantor on the same realty,' by fraud, and while he was 'in a coma, was unconscious, knew nothing of its execution,' and never regained consciousness, as a 'fraudulent scheme to hinder, delay, and defraud petitioner's possession and title,' this deed having been recorded on March 24, 1939; That the defendant was insolvent, collecting rents, and had not paid the taxes; and that the plaintiff had no complete remedy at law, and brought the suit in equity to avoid multiplicity of suits and to adjudicate all issues in a single action of equity. She prayed for 'judgment placing her in possession' of the property; for cancellation of the defendant's deed; and for impounding of the rents pending the litigation. The defendant in her answer admitted the existence of her own deed and the record, as alleged, of the plaintiff's 'purported deed'; denied other essential averments of the petition; attacked plaintiff's deed as fraudulent, undelivered, without monetary consideration; and sought to set up a claim in herself, superior to that of plaintiff, by virtue of an oral agreement between her and the grantor, whereby she would expend certain moneys on the property, which she paid, and he would deed the property to her, as he did. She prayed for an injunction against plaintiff, and for cancellation of plaintiff's deed.
The defendant was the widow of the grantor in the two deeds. The plaintiff was the niece of the deceased first wife of the grantor, and also their adopted daughter. The deed to the defendant recited a consideration only of love and affection. The deed to the plaintiff recited love and affection and also a 'valuable consideration, to wit, $10 at this time, $10 last month, and approximately $5 per monty for the past 3 years.'
There was no evidence to show fraud or invalidity of the deed to the plaintiff, as alleged in the answer. There was conflicting evidence as to the mental condition of the grantor when the deed to the defendant was executed. The jury found for the plaintiff and that the deed to the defendant was procured through fraud. The defendant assigned error on the refusal of a new trial.
Syllabus Opinion by the Court.
1. To the general rule that in order for a plaintiff to maintain an equitable petition to remove a cloud upon his title the must allege and prove possession in himself, 'there are exceptions * * * (1) In case of wild lands; and (2) where there is a distinct head of equity jurisdiction sufficient to support the action, as where deeds are obtained by fraud or other illegal means.' Mentone Hotel & Realty Co. v. Taylor, 161 Ga. 237, 130 S.E. 527; Simpson v. Kelley, 171 Ga. 523, 156 S.E. 198. Mental incapacity of the grantor to execute to the defendant the deed which the plaintiff seeks to have canceled falls within the latter exception, dispensing with the necessity for the plaintiff to allege and prove possession of the property. Morris v. Mobley, 171 Ga. 224(1, 6), 155 S.E. 8; Moody v. McHan, 184 Ga. 740, 744, 193 S.E. 240. On the question of the mental capacity of the grantor to execute the deed here in question, which the jury found invalid, which there was testimony to sustain its validity, there was testimony for the plaintiff that the grantor was in a coma at the time of the execution of the instrument, and that while the grantor could write, and had previously executed with his own signature the deed to the plaintiff on which she claimed title, the deed to the defendant was executed with the grantor's mark. Accordingly, on this controlling issue, there is no merit in the general grounds of the motion for new trial.
2. 'A registered deed shall be admitted in evidence in any court without further proof, unless the maker of the deed, or one of his heirs, or the opposite party in the cause will file an affidavit that the said deed is a forgery, to the best of his knowledge and belief, when the court shall arrest the cause and require an issue to be made and tried as to the genuineness of the alleged deed.' Code, § 29-415. The deed to the plaintiff, on which she claimed title to property in dispute, reciting a valuable consideration and having been duly recorded, and no affidavit of forgery having...
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