Tingle v. Harvill
| Decision Date | 21 October 1971 |
| Docket Number | No. 26678,26678 |
| Parties | Ben F. TINGLE, III v. Gladys G. HARVILL. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. There was no error in permitting the claims to property in Georgia and the claims to property in Alabama to be tried together, as the allegations of fraud, duress and coercion were the same as to both claims.
2. The complaint stated a claim upon which relief could be granted with respect to the Georgia property.
3. After suit had been filed, but prior to the commencement of the trial of the case, the plaintiff was declared mentally incompetent, and her guardian was substituted for her. When the guardian decided to proceed with the case, the plaintiff's competency to initiate suit became a moot question.
4. A directed verdict was not demanded with respect to the Alabama property.
5. The evidence authorized charges to the jury on the issues of fraud, undue influence, the presumptions arising from a confidential relationship, and great disparity of mental ability.
6. Appellant made a motion for a judgment notwithstanding the verdict on the ground that the plaintiff made a retraxit of her claims against him. There was no error in overruling the motion, as the plaintiff had been found mentally incompetent, and the jury was authorized to find that she remained incompetent at the time the retraxit was made.
7. There was no error in overruling appellant's motion for a new trial on the general grounds.
8. Appellant's additional enumerations of error are without merit.
William G. McRae, Atlanta, for appellant.
Arnold & Cate, William H. Cate, Atlanta, for appellee.
This appeal is from a judgment canceling and setting aside certain deeds and a contemporaneous agreement relating to certain tracts of land.
The litigation was begun as an equity action brought by Miss Mary Alice Tingle and her sister, Mrs. W. D. McDonald, individually and as attorney in fact for Miss Tingle, against Ben F. Tingle, III, and other named defendants. The complaint alleged in pertinent part as follows: that Miss Tingle was aged and infirm and had been addicted for several years to alcohol; that as a result of these conditions she had been from time to time subject to the undue influence and coercion of 'certain persons'; that the defendant Ben F. Tingle, III, was the nephew of Miss Tingle and had, from time to time, consulted with her in the conduct of her business affairs; that because of their relationship, Ben F. Tingle, III, occupied a fiduciary relationship with respect to Miss Tingle; that he had embarked upon a scheme to acquire the not inconsiderable estate of Miss Tingle for a sum representing only a nominal part of its value; that he had obtained warranty deeds to certain properties owned by Miss Tingle and by a corporation controlled by Miss Tingle by duress, fraud, misrepresentation, undue influence and coercion; and that he was able to accomplish this because of his relationship to Miss Tingle and because of her misplaced trust and confidence in his integrity. The properties involved were identified as being a tract of land in DeKalb County, Georgia (designated as Parcels I and II), another tract of land in Clayton County, Georgia (designated as Parcel V), and a tract of land in Walker County, Alabama (designated as Parcel IV). The complaint alleged that Parcels I and II had a value in excess of $300,000; that Parcel V had a value in excess of $50,000; and that Parcel IV consisted of 450 acres, more or less, and had a value of between $3,000 and $4,000 per acre. The complaint further alleged that Miss Tingle had entered into an agreement with Ben F. Tingle, III, whereby the Georgia properties would be conveyed to him in order that he might secure a loan in the amount of $65,000 to satisfy a judgment against Miss Tingle in the approximate amount of $15,000, to satisfy a mortgage upon a portion of the property, and to pay various and sundry other debts owed by her. Finally, the complaint asserted that, in the event a proper accounting should reveal that Ben F. Tingle, III, had spent any of his own money to the benefit of Miss Tingle's estate, a proper legal tender would be made at that time to reimburse him. The plaintiffs prayed for various forms of relief, including cancellation of the said warranty deeds on the grounds that they had been obtained by Subsequently, Miss Tingle was declared incompetent, and her guardian, Mrs. Gladys G. Harvill, was substituted for her in the suit. Mrs. McDonald thereafter became dissassociated from the case.
fraud, duress, mistake, misrepresentation and undue influence, and on the further grounds that there had been a total and complete failure of consideration. In the alternative, it was prayed that the deeds be declared to be security instruments. By amendment, the plaintiffs alleged that the signature on the deed to the Alabama property was not that of Miss Tingle.
In his answer and amendment, the defendant Ben F. Tingle, III, admitted that he had from time to time consulted with Miss Tingle; denied that the deeds were obtained by duress, fraud, misrepresentation, undue influence or coercion; stated that the Georgia properties were deeded to him in order that he might execute deeds to secure debt to various financial institutions; and asserted that the Alabama property was deeded to him in payment of a $14,000 loan made by him to Miss Tingle at a previous time.
The aforementioned agreement between Miss Tingle and Ben F. Tingle, III, which concerned only the Georgia property, was construed by the trial judge, and his ruling was appealed to this Court. We held in Tingle v. Tingle, 227 Ga. 97, 179 S.E.2d 51, that the agreement and the warranty deeds to the Georgia property constituted a single transaction of conditional sale, reserving to Miss Tingle the right to repurchase the properties or to sell them, provided she reimbursed Ben F. Tingle, III, and assured him of no further liability. We further held that Miss Tingle's option to repurchase or to sell could be exercised by her guardian.
The suit then came on for trial on the merits, and a jury, upon a consideration of the validity of the instruments themselves, found in favor of Miss Tingle. The trial court ordered that all of the deeds complained of and the agreement be set aside and canceled, upon the reimbursement of certain sums of money to the defendant. The defendant Ben F. Tingle, III, appeals from that order.
1. Appellant enumerates as error the trial judge's denial of his motion for separate trials of the claim to the Georgia property and the claim to the Alabama property. Appellant contends that the allegations of fraud, duress and coercion were determined adversely to Miss Tingle when we construed the agreement relating to the Georgia property, Tingle v. Tingle, supra, and that, therefore, it was highly prejudicial to permit the two claims to be tried together.
When this case was before us for construction of the agreement relating to the Georgia property, we were concerned only with the legal meaning of the transaction, assuming its validity, and we determined that it was a conditional sale. In no sense did we have before us at that time the question of the actual validity of the agreement or of the deeds. Whether they were, in fact, obtained by fraud, duress and coercion, as alleged, remained for the jury to decide. Since these allegations were the same as to the Georgia property and the Alabama property, there was no error in denying the motion for separate trials.
2. The trial court refused to sustain appellant's defense of failure of the complaint to state a claim upon which relief could be granted with respect to the Georgia property. He cites this ruling as error. Appellant contends specifically that this defense was good because (a) the complaint attacked the deeds but made no attack on the validity of the contemporaneous agreement between Miss Tingle and the appellant, (b) no notification was given to appellant of Miss Tingle's intention to rescind the agreement, and (c) no offer was made by Miss Tingle prior to filing suit to restore any benefits received under the agreement.
(a) We determined on the first appearance of this case that the agreement and the deeds constituted one and the same transaction. Tingle v. Tingle, supra. Accordingly, Miss Tingle's attack on the conveyances was good as an attack on the entire transaction, including the agreement.
(b) We understand appellant's claim that Miss Tingle did not notify him of her intention to rescind the agreement to mean that she thereby acquiesced in the agreement so as to waive any fraud and to bar rescission. Appellant relies on cases which hold that to rescind a contract for fraud, one must be diligent in discovering the fraud, Cohron v. Woodland Hills Co., 164 Ga. 581, 139 S.E. 56, and upon discovery of the fraud, one must act at once and announce his purpose to rescind. Gibson v. Alford, 161 Ga. 672(5), 132 S.E. 442. Whether Miss Tingle was diligent and whether she acted with sufficient haste were questions for the jury if those points were raised at the trial of the case, and Miss Tingle was not required to anticipate and refute them in her complaint in order to state a claim upon which relief could be granted.
(c) As for the absence prior to filing suit of an offer by Miss Tingle to make restitution of any benefits received under the agreement, we determined when this case was first before us that there was an excuse of formal tender in this case. Tingle v. Tingle, supra.
3. Appellant contends that the trial court erred in failing to charge the jury upon the issue of the mental competence of Miss Tingle to authorize the institution of the lawsuit. The validity of the power of attorney whereby Mrs. W. D. McDonald brought suit as attorney in fact for Miss Tingle was challenged in appellant's...
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Tingle v. Arnold, Cate and Allen
...Tingle and members of her family. Other appellate decisions are reported in Tingle v. Tingle, 227 Ga. 97, 179 S.E.2d 51; Tingle v. Harvill, 228 Ga. 332, 185 S.E.2d 539; Tingle v. Harvill, 125 Ga.App. 312, 187 S.E.2d 536; and Tingle v. Harvill, 230 Ga. 70, 195 S.E.2d 654. Of these four citat......
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...he cannot avoid or rescind such contract." Brooks v. Hooks, 221 Ga. 229, 235(1), 144 S.E.2d 96 (1965); see also Tingle v. Harvill, 228 Ga. 332, 336(2)(b), 185 S.E.2d 539 (1971). These cases, however, are factually distinguishable from the case at bar. As Tatum points out, Lynne Sieg could n......
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...Propounder had a confidential relationship with Testator, so that a presumption of undue influence arises. See Tingle v. Harvill, 228 Ga. 332, 339-340(5), 185 S.E.2d 539 (1971). Testator did place a general trust and confidence in Propounder, but that is not sufficient to trigger the rebutt......
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...Ga. 821, 14 S.E.2d 64 (1941). This approach was also followed in Parker v. Spurlin, 227 Ga. 183, 179 S.E.2d 251 (1971), Tingle v. Harvill, 228 Ga. 332, 185 S.E.2d 539 (1971), Myers v. Myers, 394 S.E.2d 374, 195 Ga. App. 529 (1990), and Mathis v. Hammond, 268 Ga. 158, 486 S.E.2d 356 (1997). ......
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