52 S.E.2d 845 | Ga. | 1949
1. Where the consideration recited in a deed is "one dollar, furnishing grantor a home, food, medicine, doctor's bills, hospital bills, burial expenses and all the other necessities of life during grantor's lifetime," and the grantee has failed and refused to furnish the grantor the specified items, ordinarily the remedy of the grantor would be an action for damages. Code, § 85-902; Brinson v. Hester,
(a) The grantor may maintain an equitable action to rescind the contract if the grantee is insolvent (Lindsey v. Lindsey,
2. An allegation that the defendants are insolvent is not a conclusion of the pleader, but an allegation of an ultimate fact. Schneider v. Smith,
3. Since the petition does not allege insolvency, and no special facts are pleaded to entitle the grantor to the relief of cancellation, the court erred in overruling the general demurrer to the petition.
Judgment reversed. All the Justice concur.