28 S.E.2d 773 | Ga. | 1944
1. Under the rulings in the opinion, the petition was not subject to general demurrer as stating no cause of action, nor to the special demurrers. Nor, as set forth in the opinion, is there any merit in the exceptions to charges of the court or failures to charge, nor in the exceptions to the admission of evidence.
2. Taking the plaintiff's testimony in connection with the testimony of other witnesses, it cannot be said that the evidence failed to sustain the allegations of the petition as to fraud in the execution of the deed to the plaintiff, and mistake on his part known to the grantor, so as to authorize a decree for the reformation of the deed to the plaintiff, and for the cancellation of a previous deed by the grantor to the defendant, as having been fraudulently concealed by them from the plaintiff to his injury.
(a) The special demurrer to the petition, on the ground that it is not alleged that the deceased husband left no unpaid debts, is without merit. The petition alleges that the husband died intestate, that no administrator has been appointed on his estate, and that his widow is his sole heir at law, "and she is made a party defendant herein." Thus it appears that the suit was instituted against the widow in her individual capacity, and not in her capacity as representative of the estate (as in Killian
v. Banks,
(b) The petition was not subject to special demurrer as failing to show any valuable consideration for the original deed sought by the plaintiff grantee to be reformed, since, as alleged, the medical services rendered by the plaintiff to the deceased grantor over a period of years, afforded ample consideration for the execution of the deed as payment, and for the relief sought by the plaintiff. This being a suit not to recover medical fees from the decedent's estate, but to reform and substantiate a deed of conveyance made in settlement of such fees, the allegations with respect to this consideration for the deed were not subject to special demurrer as being too indefinite.
(c) The averment that it was the agreement and "understanding" that the decedent was to make the deed sought to be reformed imply an oral agreement, this part of the petition was not subject to demurrer because it was not stated whether such "understanding" was oral or in writing.
(d) Nor was the petition subject to special demurrer as referring to close confidential relations of physician and patient between the parties to the deed sought to be reformed, since such an averment by way of inducement or as explanation of the facts and circumstances surrounding the execution of the instrument was not impertinent; and since no question is involved as to any immunity from being forced to testify.
(e) It being shown by the petition that the decedent had sought, without the consent of the plaintiff grantee, to "amend" his conveyance to the plaintiff by preparing and recording a subsequent instrument seeking to limit the quantum of plaintiff's title under the original deed by restricting it to a life-estate with remainder over to plaintiff's two named sons, and plaintiff by his petition having sought to cancel such instrument, these sons of the plaintiff were properly made parties to the petition. *224
2. The pleadings having set forth a cause of action both for reformation of the deed to the plaintiff, and for cancellation of the deed to the grantor's wife, the question under the general grounds is whether the testimony supported the allegations. No question is raised as to the right of the plaintiff to testify as to transactions with the deceased grantor. See Hall v.Butler,
(a) Nor under the preceding rules, was the charge erroneous on the ground that there could be no mutuality of mistake or mistake by the grantee and fraud by the grantor, because the grantee was not present when the deed to him was prepared and recorded by the grantor.
(b) Nor did the court err, in the absence of a written request to charge, in failing to instruct the jury more particularly as to the law of mistake, or valuable consideration in the deed to the plaintiff, where the pleadings of both parties were fully charged, and the court instructed the jury generally as to the issues and the principles of law applicable thereto.
(c) The court did not err in failing to charge the jury as to the law respecting mental incapacity of the deceased grantor to execute the deed in question to the plaintiff, since the pleaded contention of the defendant was charged; if more particular rules of law were desired, they should have been requested in writing. Especially is there no merit in this ground, since under all the evidence, including the defendant's own testimony, mental capacity of the decedent at the time of the execution of the deed plainly appeared.
(d) The defendant excepts to the failure to charge, without written request, that one of the necessary requirements of a deed, and before a deed can be reformed, is a sufficient description of the property, on the ground that the evidence showed that "the property attempted to be conveyed was in an indescribable shape," and *226 "the jury had a right to consider the question as to whether there was a deed sufficient in the matter of description to authorize them to reform the deed." There is no merit in this ground, since instructions such as contended would have been neither an accurate statement of legal rules nor of the issues raised by the pleadings, under which the plaintiff contended that by mistake and fraud the description contained in the deed was insufficient, and prayed that the deed be reformed so as to contain a correct and sufficient description, conforming to the previous understanding.
(e) The remaining grounds, relating to the admission of evidence, show no ground for a reversal. One of these complains of the admission of testimony by the plaintiff grantee as to his going into possession under his deed, but does not show what the plaintiff testified or how this was prejudicial to the defendant. Nor is there merit in the exception to the plaintiff's testimony that he did not "accept" a "paper" from any one, as a conclusion of the witness, since the ground does not show what "paper" was referred to, nor how such testimony could have been prejudicial, and if the "paper" was the deed sought to be reformed, or the "amendment" to such deed sought to be canceled, the witness subsequently testified without exception as to what he did with reference to both instruments. Nor is there merit in the exception to testimony by an attorney who was present when the grantor prepared the deed sought to be reformed, as to the grantor's purpose to convey to the plaintiff land not covered by a previous mortgage to a third person, on the ground that the mortgage itself was higher and better evidence, since the mortgage was admitted in evidence without objection, and it is not contended that its terms were in conflict with this oral testimony. Nor is there merit in the exception to the admission of a plat or drawing made by the attorney to illustrate his testimony, on the ground that he knew nothing as to the lines, and that his plat was not identified as correct, since the witness himself testified that it was made from the county map and the records, and that the grantor had a like drawing made by the witness when the deed in question was prepared.
Judgment affirmed. All the Justices concur, except Wyatt, J.,disqualified. *227