Sheppard v. Broome

• Decision Date: 12 January 1959
• Docket Number: No. 20266,20266
• Citation: 107 S.E.2d 219,214 Ga. 659
• Parties: Curtis M. SHEPPARD, by Guardian, v. Robert K. BROOME.
• Court: Georgia Supreme Court

Page 219

107 S.E.2d 219

214 Ga. 659

Curtis M. SHEPPARD, by Guardian, v. Robert K. BROOME.

No. 20266.

Supreme Court of Georgia.

Jan. 12, 1959.

Rehearing Denied Feb. 6, 1959.

This case involves an equitable action in two counts to set aside and cancel two deeds to property, on the grounds of mental incapacity of the grantor and fraud and undue influence practiced by the grantee in obtaining the execution of the deeds. The petition as amended set forth: that the grantor was an habitual drunkard, a chronic alcoholic having an overpowering thirst and desire for alcoholic drinks, mentally incapable of handling his affairs, and that a commission empaneled according to law had so found, and that, after a judgment of the court of ordinary, a guardian had been duly appointed and qualified to handle his affairs; that this action occurred in June of 1955, and in March and April, 1955, he had executed the deeds to certain property having a reasonable value of $40,000 to $45,000, and a potential value of a far greater sum, for which the consideration was grossly inadequate; that the defendant had full knowledge of the grantor's condition, had entertained the idea of acquiring said property for a period of one year prior to the execution of the deeds and had practiced fraud and undue influence on the grantor, who was without mental capacity to know and understand the nature, purpose, and effect of his acts in executing the deeds to the defendant.

The case proceeded to trial and, after verdict and judgment for the defendant, the plaintiff, the duly appointed and qualified guardian of the grantor, filed her motion for new trial, which was later amended to add seventeen special grounds based upon rulings on the admission of evidence and the charge of the court. After a hearing thereon the motion was denied, and the exception is to that judgment. Counsel for the plaintiff in error has expressly waived the general grounds, hence the consideration of the case here deals with the special grounds only.

Carl T. Hudgins, Decatur, for plaintiff in error.

Thomas O. Davis, W. Dan Greer, decatur, for defendant in error.

Syllabus Opinion by the Court

DUCKWORTH, Chief Justice.

After charging that undue influence is that influence obtained by flattery, superiority of will, mind or character, which would give dominion over the will to such an extent as to destroy free agency, or constrain one to do against his will what he is unable to refuse, the court then charged, 'Undue influence which operates as a matter of law to invalidate a deed is such influence as amounts to either deception or to force and coercion, thereby destroying free agency. It is not unlawful for a person by honest intercession and persuasion to procure a deed in favor of himself from another. Neither is it unlawful to induce the grantor by flattering speeches, for where persuasion mya be employed in itself it does not amount to undue influence in the legal sense.' The quoted portion of the charge is objected to as being too narrow and restrictive, argumentative, not adjusted to the facts, without evidence to support it, and contradictory of the earlier definition of undue influence. We have examined the charge as a whole after considering the evidence, and do not find any merit in the grounds of complaint thus made. Hence this ground is without merit. See DeNieff v. Howell, 138 Ga. 248(6), 75 S.E. 202; Ward v. Morris, 153 Ga. 421(3), 112 S.E. 719.

In charging with respect to the practice of fraud or undue influence, the court charged: 'if you find that Curtis M. Sheppard did have mental capacity to make a deed on March 21, 1955, * * * that no fraud on undue influence was practiced on Curtis Sheppard by the defendant Broome, if you find that there was not such great inadequacy of consideration or such great disparity of mental ability' to justify setting aside the deed, you would not set aside the deed and return a verdict in favor of the defendant. The charge was in approximately the same language with reference to the second deed executed on April 19, 1955, that, if Sheppard was mentally capable of executing a deed and 'on the date no fraud or undue influence as charged in the petition was practiced,' and no such great inadequacy of consideration joined with great disparity of mental ability which would justify setting the deed aside, the verdict would be for the defendant. The grounds of complaint are that the charge was too narrow and restricted with respect to the practice of fraud by restricting it to the dates the deeds were executed, when in fact such fraud had been practiced for a period of approximately a year prior to the execution of the deeds, and the jury was not authorized by the charge to consider evidence of fraud or undue influence practiced prior to these dates; that, in reference to the first deed, it failed to charge 'great inadequacy of consideration joined with great disparity of mental ability,' but considered each separately and placed a greater burden upon the movant to show such great inadequacy of consideration or such mental disparity as to justify a recovery. That the influence must be operative at the very time the instrument is executed, there can be no doubt. Thompson v. Davitte, 59 Ga. 472, 473, 476(3); Brumbelow v. Hopkins, 197 Ga. 247(2), 252, 29 S.E.2d 42. And since neither inadequacy of consideration nor mental disparity is a ground for setting a deed aside when considered alone, the charge complained of would have been helpful rather than harmful to the movant. However--in considering the charge as a whole--the trial judge made it clear that both of the foregoing elements must be joined in the same transaction to justify setting the deeds aside. Hence there is no merit in this special ground.

Weakness of mind not amounting to imbecility is not sufficient mental incapacity to justify setting a deed aside. Maddox v. Simmons, 31 Ga. 512(2, 3, 4), 528; Nence v. Stockburger, 111 Ga. 821, 36 S.E. 100; Johnson v. Coleman, 134 Ga. 696, 68 S.E. 480; Durrett v. McWhorter, 161 Ga. 179, 186, 129 S.E. 870; Higgins v. Trentham, 186 Ga. 264, 268, 197 S.E. 862. This charge when considered with the entire charge did not confuse and mislead the jury. A correct charge is not rendered erroneous by failure to give in the same connection some other pertinent provisions. Central of Georgia Ry. Co. v. Grady, 113 Ga. 1045(3), 39 S.E. 441; Cline v. Milledgeville Banking Co., 131 Ga. 611(2), 62 S.E. 984; Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505(3), 71 S.E. 887. Nor did the court err in charging that 'the holder of the legal title, if competent, has the right to make a deed to his property without consulting anyone,' since there was evidence by the wife that she should have been consulted before her husband sold the property. The entire charge was adapted to the pleadings and the evidence, and was not erroneous in failing to refer to other contentions when charging on certain contentions and issues in the case. There is no merit in the grounds complaining of various excerpts from the charge which state correct principles of law yet fail to mention other contentions and issues in the case.

A recharge of a certain portion of a charge at the request of the jury, where the original charge has fully covered the issues involved, would not be ground for reversal on the basis that the restatement re-emphasized and impressed upon the minds of the jurors the contentions of the defendant and did not restate all the contentions of the plaintiff. See Hatcher v. State, 18 Ga. 460(5); Short v. State, 140 Ga. 780(9), 80 S.E. 8; Carrigan v. State, 206 Ga. 707, 708(10), 58 S.E.2d 407. Clearly the re-charge complained of in the fourth special ground had reference to mental capacity to make a deed, and did not have reference to other issues of undue influence and fraud. Nor did the restatement complained of in special ground eleven re-emphasize the contentions of the defendant and not restate the contentions of the plaintiff. There is no merit in either of these grounds.

The fifth special ground objects to a charge that a deed may be executed by the grantor because of likes, dislikes, and prejudices, and would not be set aside even though such likes, dislikes, or prejudice might be well founded or unfounded, in that it was argumentative, erroneous, confusing, intimated an opinion that dislikes and prejudice might be inferred from the evidence, and there were no allegations of...