151 Ga. 763 | Ga. | 1921
Lead Opinion
(After stating the foregoing facts.) The petition in this case does not, disclose the exact character of the action brought by Mrs. Fuller against Mrs. Eubanks and Mrs. Zellars, nor the issues therein involved and decided, further than that case included a controversy over the land covered by the lease contract here sought to be canceled, that a guardian ad litem was therein appointed for Mrs. Fuller, “on account of her mental weakness and incapacity,” that a settlement was made of the controversies in the case, and that a decree was rendered by which the life-estate of Mrs. Fuller in the property, the subject-matter of the lease contract, was passed and conveyed to the petitioners in the present case, and that they were decreed to be the absolute owners in fee of the entire interest in the leased premises. The petition does not allege that Mrs. Fuller is not still in life, npr that she has not continued to be insane since the execution of the lease contract, nor that she has ever been adjudged to be insane, and a guardian ap
It is well settled in this State that the contract of an insane person, or one non compos mentis, who has never been adjudged to be insane or of unsound mind as prescribed by the code, is not absolutely void, but only voidable. Bunn v. Postell, 107 Ga. 490 (33 S. E. 707), followed in Orr v. Equitable Mortgage Co., 107 Ga. 499 (33 S. E. 708), Woolley v. Gaines, 114 Ga. 122 (39 S. E. 892, 88 Am. St. R. 22), and Perry v. Reynolds, 137 Ga. 427 (73 S. E. 656). This doctrine has been almost universally recognized by text-writers, and adjudicated cases on the subject. “ Such a contract may be ratified by [the insane person] upon afterward becoming sane, or during a lucid interval, or, after his death, may be avoided or ratified by his heirs or personal representative.” Bunn v. Postell, supra. The right to disaffirm a voidable contract of an insane person 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 other party to the contract nor third persons can avoid it. .In support of these legal propositions see the authorities cited in Bunn v. Postell, supra; and in 22 Cyc. 1174, notes 90, 92, 93, 94, 95; and 1209, notes 24, 26, 27, 28; 16 Am. & Eng. Enc. Law, 629, note, 2; 9 Ib. 119, notes 2, 3, 4; 14 R. C. L. 592, notes 10, 12, 13; Clark on Contracts (3d ed.), 231, notes 40, 41, 42, 43, 44; 1 Devlin on Realty (3d ed.), § 73, note 8, and § 75, note 7; 3 Tiffany on Real Property (2d ed.), 2342, note 65; and 2344, note 71a; 1 Jones on Real Property, § 64, note 6; 1 Williston on Contracts, § 253 note 28; 1 Elliott on Contracts, § 382, notes 84, 85, 87; 4 Ib. 3221, notes 95, 3, 4, 5, 6. Also Vogel v. Zuercher (Tex. Civ. App.), 135 S. W. 737 (4); Porter v. Brooks (Tex. Civ. App.), 159 S. W. 192.
The petitioners in this case, who are seeking to disaffirm the lease contract of Mrs. Fuller on the ground that she was insane when it was executed, do not in any way represent her, nor claim
Counsel for defendants in error rely upon the two cases of Breckenridge’s Heirs v. Ormsby, 1 J. J. Marshall (Ky.), 236 (19 Am. D. 71), and Clay v. Hammond, 199 Ill. 370 (93 Am. St. R. 146, 65 N. E. 352). In both of those eases it was decided, in effect, that one to whom the grantor, after recovering his sanity, transfers the property has the same right to avoid a conveyance made by his grantor while insane, in favor of another person, as has the grantor himself; seemingly for the reason, as in the case of a conveyance by an infant, that the mere execution of an inconsistent conveyance by the grantor after the removal of his disability involves in itself a repudiation of the voidable conveyance. 3 Tiffany on Beal Property (2d ed.), 2345. These rulings are not directly applicable here, nor are they necessarily in conflict with our holding. Whether a guardian of an insane person can, by his own act, and without an order of a court of competent jurisdiction, avoid the contract or deed of his ward, executed while he was insane, and prior to an adjudication of his insanity and the appointment of a guardian, is not necessary to be decided in this case, as there was never an adjudication that Mrs. Fuller, under whom the petitioners claim as successors in interest or title, was insane, nor was a guardian ever appointed for her property. It is true that " on account of her' mental weakness and incapacity ” a guardian ad litem was appointed for her by the judge of the superior court in the suit she brought against the present petitioners, in which suit the decree was rendered upon which the petitioners base the contention of their right to disaffirm and have canceled the lease contract made between Mrs. Fuller and defendant here; and while under the allegations of the petition a settlement of the controversies involved in that case was made, "including a controversy over the land in question,” and the decree rendered effectuated the settlement and adjudicated that the life-estate of Mrs. Fuller was passed and conveyed to the petitioners here, and that they are the absolute owners in fee of the entire interest in the leased property, yet the McClure Bealty and Investment Company
From what has been said we must conclude that the court erred in overruling the general demurrer to the petition)
Judgment reversed.
Concurrence Opinion
concurs specially, because not enough of the pleadings in the case of Fuller v. Eubanks et al., and of the consent decree entered therein (to which the insane person’s guardian ad litem consented), is set out, in the petition in this case to enable the court to determine whether the insane person, through her guardian, disaffirmed the lease contract.