Whitfield v. Whitfield
| Decision Date | 15 July 1948 |
| Docket Number | 16268,16285. |
| Citation | 48 S.E.2d 852,204 Ga. 64 |
| Parties | WHITFIELD et al. v. WHITFIELD. WHITFIELD v. WHITFIELD et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. An equitable action to cancel a deed on the ground of fraud which clearly shows that the complainant failed to use even slight diligence to discover the fraud, fails to allege a cause of action.
2. Courts of equity will not grant relief to one whose long delay renders the ascertainment of the truth difficult though no legal limitation bars the action.
Claud F. Brackett and R. B. Pullen, both of Atlanta, for plaintiffs in error.
Lipshutz, & Macey and Robert J. Lipshutz, all of Atlanta, for defendant in error.
1. This is an action in equity to cancel and set aside a deed. The first question for determination is raised by the exception to the overruling of general demurrers to the petition. Apparently the plaintiff rests his case on alleged misrepresentation, and suppression of material facts by his brother. 'Misrepresentation of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitutes legal fraud.' Code, § 37-703. Code, § 37-704.
A demurrer admits facts properly pleaded but it does not admit a fraud charged, except as the facts alleged may establish or constitute fraud. Miller v. Butler, 121 Ga. 758(3), 49 S.E. 754; Tolbert v. Caledonian Ins. Co., 101 Ga. 741, 746, 28 S.E. 991. A general allegation of fraud amounts to nothing. The complainant must show wherein the fraud exists and issuable facts must be charged. Anderson v. Goodwin, 125 Ga. 663, 669, 54 S.E. 679; Hickman v. Cornwell, 145 Ga. 368, 372, 89 S.E. 330; Lathrop v. Miller, 164 Ga. 167, 170, 138 S.E. 50. Allegations of a pleading are to be construed most strongly against the pleader, and the demurrer admits only facts, not legal conclusions of the pleader. Lee v. City of Atlanta, 197 Ga. 518, 520, 29 S.E.2d 774.
In this case it is alleged that: The petitioner is almost illiterate, he can not read, and can only scrawl his name. He is incapable of engaging in any but the simplest business transactions. His brother acted as his agent in the preservation of their common property, and the petitioner reposed special trust and confidence in his brother. The petitioner never intended to sign any deed conveying his interest in described property to his brother. In signing the deed he acted under a misapprehension as to its effect, induced by and in reliance upon the fraudulent representations made by his brother that the signing of the deed by the petitioner was necessary to conserve and maintain the property. At no time did his brother advise the petitioner that he was conveying his interest to his brother. Had the petitioner been aware of the true contents of the deed, he would not have signed it. The consideration recited in the deed was not paid. There was great disparity of mental ability between the petitioner and his brother, and his brother exercised undue influence over the petitioner in obtaining his signature on the deed. He has never received any rents, benefits or profts from the property.
It is unnecessary that the vague and indefinite allegations made be stripped of conclusions of the pleader in order to arrive at the weakness of the petitioner's case. If the allegation that the petitioner never intended to sign any deed conveying his interest to his brother should be construed as stating that the petitioner did not know that he was signing a deed, we are then met with his allegation that, in signing the deed, he acted under a misapprehension as to its effect. Whether the petitioner did not know that the document was a deed, or knowing it to be a deed, he 'acted under a misapprehension as to its effect,' can not be positively stated from the allegations of the petition. It is perfectly clear, however, that he relies on general allegations of ignorance, since he alleges that his brother never told him that he was conveying his interest to his brother.
The law, however, requires something more than just ignorance, or even misplaced confidence, to cancel and set aside contracts apparently valid on their face. This court has repeatedly held that he who can read, must read. See Weaver v. Roberson, 134 Ga. 149, 67 S.E. 662; Green v. Johnson, 153 Ga. 738(3), 113 S.E. 402; Bentley v. Barlow, 178 Ga. 618(2), 173 S.E. 707, and cases cited. In this case it is alleged that the petitioner can not read. He is not, however, relieved of the rule that, 'Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of the parties' (Code, § 37-116); and the further rule that, 'If a party, by reasonable diligence, could have had knowledge of the truth, equity shall not relieve.' Code, § 37-211. The copy of the deed attached as an exhibit shows the signatures of three witnesses. There is no allegation that the petitioner asked any of these witnesses to tell him the nature of the contract he was signing, nor is there any allegation that he was...
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