Armour v. LunsfordArmour v. Lunsford
- Reporters:
- , ,
- Before:
- Bell
2. Facts alleged positively in a petition are constructive admissions in favor of the defendant. The plaintiff by thus introducing them, “and making them a part of the record, precludes himself from disputing their truth, whether they be true or false. The allegations and admissions of the complainant‘s [petition] are therefore evidence against him.” Peacock v. Terry, 9 Ga. 137 (6), 150; Royal v. McPhail, 97 Ga. 457 (5) (25 S.E. 512); Mullis v. McCook, 185 Ga. 171 (3) (194 S.E. 171); New Zealand Fire Insurance Co. v. Brewer, 29 Ga. App. 773 (6, 7) (116 S.E. 922);
3. The court charged the jury as follows: “If you should find there was great disparity between the ages of Mrs. L. M. Armour and Mrs. Estelle Armour, that the parties occupied a confidential relation to each other, that the deeds were without any consideration at all, or if there was a consideration and the consideration was grossly inadequate, then I charge you that only slight evidence would be necessary to set the deeds aside.” The jury having returned a verdict in favor of the plaintiffs, the defendant by motion for a new trial complained of the foregoing excerpt, on several grounds. Held, that in so far as the charge mentioned consideration or adequacy of consideration, it evidently referred to valuable consideration, and, under the rulings made above as to the effect of the petition as related to that question, the charge was erroneous, as contended, on the ground that it injected into the case an issue not supported by the evidence. See Owen v. Smith, supra. Under the facts of the record, it can not be said that the error was harmless. Southern Railway Co. v. Gresham, 114 Ga. 183 (2) (39 S.E. 883); Southern Cotton-Oil Co. v. Skipper, 125 Ga. 368 (7) (54 S.E. 110); Culberson v. Alabama Construction Co., 127 Ga. 599 (56 S.E. 765, 9 L.R.A. (N.S.) 411, 9 Ann. Cas. 507).
4. While the charge referred to disparity in age and not in mental ability, and thus could not be sustained under the
5. The charge is not construed as an instruction as to what would constitute a prima facie case, shifting the burden of evidence. Compare Trustees of Jesse Parker Williams Hospital v. Nisbet, 191 Ga. 821 (6) (14 S.E.2d 64).
6. Except as indicated in note 3 above, the charge was not erroneous for any reason assigned. For the error there pointed out a new trial should have been granted.
Judgment reversed. All the Justices concur.
The petition contained the following allegations: “Prior to the year ____,” Mrs. Lucinda M. Armour lived at the home of T. W. Lunsford in Wilkes County, but in that year the defendant, who had recently returned to this county from California, caused the deceased to remove from the home of T. W. Lunsford to a house owned by the deceased, where the defendant resided with her until her death. Before her removal from the home of T. W. Lunsford, Mrs. Lucinda M. Armour owned described real and personal property, and had an income from a pension of $30 per month as the widow of a Confederate veteran. At the time of her death she was ninety-two years of age. On December 4, 1934, the defendant procured from the deceased, for a purported consideration of $5, a deed to 135 acres of land, and on March 23, 1935, August 14, 1937, and December 17, 1937, she procured from the deceased deeds to other lands for purported cash considerations of $10, $10, and $1 respectively. Said deeds were recorded within a few days after their execution, except the one executed on December 17, 1937, which was recorded on October 5, 1938. Petitioners show that since Mrs. Lucinda M. Armour allowed Mrs. Estelle Armour to live with her, she has been under her complete domination and control, and that she has used her influence over this aged lady to gain possession of her property. That Mrs. Lucinda Armour was eighty-seven years of age at the time the first conveyance was made, and
The defendant answered, admitting the execution of all the deeds referred to in the petition, but denying the exercise of any undue influence upon the deceased. The answer concluded: “Further answering plaintiffs’ petition, this defendant says, that for a number of years Mrs. L. M. Armour lived [with] her son-in-law T. W. Lunsford and his wife, who was her daughter; that about 1932 this defendant‘s son, Robert Armour, visited his grandmother, and said Mrs. L. M. Armour became greatly attached to him; this defendant at the time was residing in the State of California, was regularly employed, and was making a comfortable living for herself and her said son, when said Mrs. L. M. Armour continuously and over a considerable period of time persuaded and insisted on this defendant‘s
By amendment the plaintiffs alleged “that the deeds made by Mrs. L. M. Armour to Mrs. Estelle Armour described in this petition, while reciting a nominal consideration, were in fact without consideration, and were voluntary deeds.”
The plaintiffs’ evidence at the trial was mainly circumstantial. The defendant testified that all of the deeds were deeds of gift, and that grantor stated to her, “She wanted me to have everything she had.” One of the plaintiffs, referring to the grantor‘s mental condition, testified: “I thought her mind was good for a person of her age, but I think her mind weakened with her body.” Other evidence was to the effect that her mental condition was good until, or a short time before, her death. A physician, as a witness for the defendant, testified: “For her age she was unusually vigorous, mentally and physically. . . I did not discover in her any form of mental deficiency. . . I meant she was in good condition to be ninety-two years old.” According to the evidence, the deceased was about eighty-seven years old when the first deed was made in 1934, and was about twenty-two years older than the defendant. The foregoing is not intended as a complete statement of the evidence, as much other evidence was introduced both by the plaintiffs and by the defendant.
The motion for new trial consisted of the general grounds, and one special ground complaining of the following charge to the jury: “I charge you that if you should find there was great disparity between the ages of Mrs. L. M. Armour and Mrs. Estelle Armour; that the parties occupied a confidential relation to each other; that