Thompson v. Lanfair

• Citation: 56 S.E. 770,127 Ga. 557
• Parties: THOMPSON v. LANFAIR et al.
• Decision Date: 14 February 1907
• Court: Georgia Supreme Court

56 S.E. 770

127 Ga. 557

THOMPSON v. LANFAIR et al.

Supreme Court of Georgia

February 14, 1907

Syllabus by the Court.

The court below erred in overruling the motion for a new trial as the verdict in favor of the plaintiff was without evidence to support it.

Grounds of a motion for a new trial which complain of the admission of testimony are without merit when they fail to show that objection was made at the time of the introduction of such testimony, and that the same was admitted over objection.

This being an equitable action to have a certain deed delivered up and canceled, on the ground that the execution of the same was procured by fraud, it did not abate upon the death of the grantor in the deed, who was the original plaintiff in the action when brought.

Error from Superior Court, Pulaski County; W. H. Felton, Jr. Judge.

Action by Mrs. Nancy Lanfair against Morgan Thompson, administrator. On the death of plaintiff, William A. Lanfair and others were substituted as parties plaintiff. From a judgment in favor of plaintiffs, defendant brings error. Reversed.

H. E Coates, for plaintiffs in error.

W. L. & Warren Grice, for defendant in error.

BECK J.

1. In this action Mrs. Nancy Lanfair sought to have a deed which she had executed to James Lanfair declared null and void, and to have the same delivered up and canceled. By that deed certain realty and personalty were conveyed to her son, the said James Lanfair; the conveyance purporting to be "for and in consideration of the support and maintenance of the grantor during her natural life," and the remainder of the instrument being in the usual form of a warranty deed conveying realty in fee simple. The alleged value of the property conveyed was $750. Before the trial the plaintiff died, and W. A. Lanfair, Sarah Lanfair, Emma Phillips, Ira Lanfair, Annie Marchman, Rosa Marchman, Carrie Marchman Nellie Lanfair, and Ilo Lanfair, her heirs at law, were made parties plaintiff, and the case proceeded in their name. Upon the trial of the case the jury returned a verdict in favor of the plaintiffs, and thereupon a decree was taken and entered up, wherein it was "ordered and adjudged that said deed be canceled and delivered up by the administrator of James Lanfair, and declared of no effect so far as it relates to the realty therein described"; counsel for petitioners having stated to the court that they did not ask for "a rescission of the personalty." The defendant moved for a new trial, and, the motion having been overruled, he excepted.

After a careful reading and consideration of the testimony in the case, we are of the opinion that the court should have granted the motion for a new trial, upon the ground that the verdict was without evidence to support it. Even if the defendant's intestate had failed to furnish the grantor the "support and maintenance during her natural life," this would not have been sufficient ground for holding the deed in question to be null and void, and ordering the same to be canceled. In the case of Brand v. Power, 110 Ga. 522, 36 S.E. 53, it was held that an absolute deed of conveyance would not, at the instance of the grantor, be canceled merely because of a breach by the grantee of a promise made by him in consideration of which the deed was executed. In that case it was said by presiding Justice Lumpkin, who delivered the opinion, that "if we treat the petition as sufficiently alleging that the undertaking of the defendant to provide a support for his mother was the sole consideration of the deed, which is by no means clear, his failure to do as he promised amounts to nothing more than a mere breach of contract, for which the plaintiff has an adequate remedy by a proper action for...