Simpson v. Kelley

• Decision Date: 09 December 1930
• Docket Number: No. 7856.,7856.
• Parties: SIMPSON. v. KELLEY.
• Court: Georgia Supreme Court

171 Ga. 523

156 S.E. 198

SIMPSON.

v.KELLEY.

No. 7856.

Supreme Court of Georgia.

Dec. 9, 1930.

Syllabus by Editorial Staff.

Error from Superior Court, Stewart County; Z. A. Littlejohn, Judge.

Action by Mrs. Zilphia Simpson against A. F. Kelley, doing business under the trade-name of the A. F. Kelley Chevrolet Company. Judgment for defendant, and plaintiff brings error.

Reversed.

Mrs. Zilphia Simpson instituted an action against A. F. Kelley, doing business under the trade-name of A. F. Kelley Chevrolet Company. The petition as amended alleged substantially the following: D. S. Simpson, the husband of petitioner, died intestate on December 16, 1920, leaving described real estate, of which he died seized and possessed. That realty was set apart as a year's support to petitioner and her minor child. Petitioner, who was 70 years of age, executed a deed to A. F. Kelley Chevrolet Company on December 15, 1927, the deed reciting that it was made "in consideration of —— dollars * * * being the lands set apart to grantor as year's support out of the estate of D. S. Simpson, late of Stewart County, Georgia." By reason of this recital in the deed, the defendant knew that the land had been set apart as a year's support, and he knew also, independently of the deed, that petitioner was the owner of the land, and that it had been set apart to her as a year's support. At the time the deed was executed, petitioner was not indebted to defendant, nor did she receive any consideration whatever, and the deed is void. Petitioner's married son, Cecil Simpson, who is twenty-one years of age, negotiated the transaction with defendant, and that he either borrowed money or was indebted to defendant in some amount unknown to petitioner, who thought when she signed the paper that she was signing a note of some amount for her son, and afterwards learned that it was a deed. Defendant has gone into possession of the land, claiming it as his own. Petitioner charges that as to her the deed is null and void, for the reason she received no consideration, and that the deed was not intended to convey any title. Defendant is in possession of the land, claiming under the deed, which is a cloud upon her title. If defendant conveys the land to some other person, she will suffer irreparable loss. The prayers are for decree that the deed be canceled as a cloud upon the title of petitioner and declared null and void as against her title; that defendant be enjoined from mortgaging or incumbering the land or conveying or selling it to any person, or creating any lien upon it in his own name or in the name of A. F. Kelley Chevrolet Company; and for general relief.

The defendant demurred to the petition, on the grounds: (1) That the allegations are insufficient in law as a cause of action against defendant, and no cause of action is set outin the petition; (2) that the petition does not set out any matter or thing of equity or equity jurisdiction, and upon its allegations the plaintiff is not entitled to the relief prayed for. The court sustained the demurrer and dismissed the action. The plaintiff excepted.

Geo. Y. Harrell, of Lumpkin, for plaintiff in error.

Stephen Pace, of Americus, for defendant in error.

Syllabus Opinion by the Court.

ATKINSON,...