Wynne v. Fisher

• Citation: 119 S.E. 605,156 Ga. 656
• Decision Date: 12 October 1923
• Docket Number: 3752,3753.
• Parties: WYNNE v. FISHER. FISHER v. WYNNE.
• Court: Supreme Court of Georgia

119 S.E. 605

156 Ga. 656

WYNNE v. FISHER.

FISHER v. WYNNE.

Nos. 3752, 3753.

Supreme Court of Georgia

October 12, 1923

Syllabus by the Court.

While the deed of an insane person, who has not been adjudged insane, is not absolutely void, but only voidable, and the right to disaffirm such deed is personal to the insane grantor and can be exercised only by him if restored to sanity, or, if his insanity continues until his death, then by his legal representative or his heirs, such insane person having no legal guardian, may sue in a court of equity by another as his next friend to cancel his deed, made when he was mentally incapable of executing the same.

In cases of fraud, equity will not cancel a conveyance under which anything has been received, until repayment is made and generally a petition for cancellation must allege a tender of, or offer to restore by the plaintiff to his vendee, anything received under such instrument; but where the petition alleges that the defendant had been in possession, receiving the rents and profits of the premises conveyed, and prays for an accounting therefor by the defendant and that the correct amount due him be declared and set up, no formal tender of the actual amount which may be due the defendant is necessary.

The allegations of the petition as to the mental incapacity of the plaintiff to execute the deed sought to be canceled are sufficient to withstand a general demurrer; and, the petition in other respects setting forth a cause of action, the court below erred in dismissing the same upon demurrer.

Where a petition prays for a permanent injunction against the defendant, but does not pray for a temporary injunction or other interlocutory relief prior to the final trial, the same can be filed in the office of the clerk of the superior court without first obtaining the sanction of the judge.

Error from Superior Court, Bleckley County; Eschol Graham, Judge.

Petition by N.M. Wynne, by her next friend, W. M. Wynne, against J. A Fisher. Petition dismissed on demurrer, plaintiff brings error, and defendant files cross-bill of exceptions. Reversed on main bill of exceptions, and affirmed on the cross-bill.

Julian F. Urquhart and R. D. Feagin, both of Macon, for plaintiff in error.

Bleckley & McWhorter, of Cochran, for defendant in error.

HINES J. (after stating the facts as above).

1. It is unquestionably true that the deed of an insane person, who has never been adjudged to be insane or of unsound mind, is not absolutely void, but only voidable, and that the right to disaffirm the deed of an insane grantor is personal, and can be exercised only by himself, if restored to sanity, or, if his infirmity continues till his death, then by his legal representative or his heirs, but neither the grantee nor strangers can avoid it. Bunn v. Postell, 107 Ga. 490, 33 S.E. 707; McClure Realty, etc., Co. v. Eubanks, 151 Ga. 763, 108 S.E. 204. These decisions hold that the right to disaffirm such an instrument is one which the grantor only, or, in case of his death, his legal representative or heirs, can assert and enforce. They do not decide that the insane grantor cannot enforce this right by next friend. Whatever may be the rule elsewhere, it is now well established in this state that a person of unsound mind, having no legal guardian, may sue in a court of equity by another as his next friend, to cancel his deed, made when he was mentally incapable of executing such instrument. Such action is that of the insane grantor acting through his next friend. Civil Code 1910, § 5416; Reese v. Reese, 89 Ga. 645, 15 S.E. 846; Dent v. Merriam, 113 Ga. 83, 38 S.E. 334; La Grange Mills v. Kener, 121 Ga. 429, 434, 49 S.E. 300. In Dent v. Merriam, the precise point involved in this litigation was decided adversely to the defendant. The law declares such an instrument voidable; and where, from his infirmity, the insane grantor on his own motion cannot disaffirm and have the instrument set aside and canceled, this can be done by his next friend in a court of equity, whose doors are always open to protect such unfortunate persons and to enforce their rights. So the petition in this case was not...